This Article is written by Mr. JAGRIT SINGLA, student of BABA FARID LAW COLLEGE, FARIDKOT.

Abstract:

This article explores the intricate landscape of digital evidence in divorce cases, shedding light on both its admissibility and the multifaced challenges it presents within the legal realm. As technology intertwines with personal relationships, the role of digital evidence becomes increasingly pivotal in establishing grounds for divorce. Examining the admissibility criteria, including relevance, authenticity, and compliance with hearsay rules, reveals the delicate balance required for these digital artifacts to sway the scales of justice. As digital evidence continues to shape the narrative of divorce cases, this article serves as a guide for legal professionals, offering insights into the complexities of admissibility and the nuanced strategies needed to navigate this digital frontier.  

Introduction:

In the age of technology, the Courtrooms are increasingly confronted with the admissibility and challenges associated with the digital evidence, a phenomenon which is not exempt from the realm of Hindu Divorce cases. As couples navigate the intricate legal landscape of marriage dissolution, the digital footprint they leave behind has become a pivotal aspect, bringing both the opportunities and hurdles. In Hindu Divorce cases, digital evidence can be admissible if it meets the legal criteria, such as authenticity and relevancy. Common challenges include proving the authenticity of digital content and addressing issues of privacy. Courts often consider the Indian Evidence Act and specific rules regarding the electronic evidences.

Digital Evidence:

Digital Evidence means any electronic record, i.e., data, record or data generated, image or sound stored, received, or sent in an electronic form or micro film or computer-generated micro fiche which can be used as a piece of evidence in Court of law. Electronic records produced for the inspection of the Court are called “Documentary Evidence.”  Section 65-B of the Indian Evidence Act, 1872 provides that the digital evidence shall be considered as documentary evidence, if:

1. Computer output is produced during the period when the computer was regularly used to store or process information for regular activities by a person with lawful control over that computer.
2. During the same period, information contained in electronic records or data derived from the other source that is included in an electronic record was regularly fed into the computer from which computer output is produced.
3. During the same period, the computer was working correctly, and if not, then electronic records and its contents are not affected.
4. The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. 

#Case: “Anvar P.V. versus P.K. Basheer & Ors” (2014) 10 SCC 473, the Supreme Court while overruling the statement of law on admissibility of secondary evidence pertaining to electronic record, as held by the court in the case of “State (NCT of Delhi) v. Navjot Sandhu alias Afsal Guru (2005), explained that, “an electronic record by way of secondary evidence shall not be admitted in the Court as evidence unless the requirement under Section 65-B is satisfied. Thus, in case of CDs, VCDs, and chips, etc. the same shall be accompanied by the certificate obtained at the time of taking the document as per Section 65B of the Indian Evidence Act, without which the secondary evidence pertaining to that electronic record is inadmissible.

Many divorce lawyers also use digital evidence in Court of Law and hire the digital forensic experts for the collection of electronic data and find the clues that may be useful in the cases.

Use of Digital Evidence in Divorce Cases:

Digital evidence can be very critical as it reveals the personal information of an individual. Today the electronic evidences are used in various cases to prove or disapprove any point in the Court of Law, and the divorce litigations are no exception to this; subject to the provision that the privacy of the parties should not be offended. The digital evidence can become a very important aspect in determining the outcome of the case. 

Following some of the data sources which can be used as digital evidence in the divorce matters:

• E-Mails and Text Messages: The emails and text messages are the most common type of electronic evidences which can be used to prove or disapprove any type of conduct or misconduct between the husband and wife in the divorce case by showing the communications held between them, if any, such as abuse, harassment, and other forms of misconduct. The messages can provide the direct and often unedited communication between the parties involved and can include the information about the dates, time, and locations also.
• Social Media: Social media is also one of the important sources for gathering the evidence of betrayal or other forms of misconduct. This provides the insight into the parties’ behaviour, interest, and activities, which can be analysed as digital evidence in the divorce cases. For instance, if husband or wife has an account on social media where they are actively communicating with any third party and it is not just a professional communication, it could be used as evidence of disloyalty.
• Computer and Phone activity: Computer and phone activities including the browsing history, search history and application usage, can be used as a valuable piece of digital evidence in divorce cases.
• Cloud Storage: Cloud Storage, like Google drive, iCloud, Dropbox, etc. can be a valuable source of digital evidence used in divorce cases. These can provide access to a wide range of information, viz. documents, photos, videos, and other files that can be used to prove adultery or abuse or harassment, etc. which can be used as evidence in the Court of Law.  

 

Reasons for using the Digital Evidence: 

The Digital Evidence help to use the information which could be vital for the investigations or litigations. The information stored in the electronic devices, mobile phones or computers or laptops, can be used in the divorce cases to prove the disloyalty between the husband and the wife. Following are some of the reasons to use the Digital Evidences in the Court: –

• Reveals Motive: The data collected from the electronic devices can reveal the real motive of the party against whom the evidence can be used which unveil the useful information of what they do, why they do and how they do.

• More Evidence: The digital evidence helps the lawyers to collect more useful insights by looking into the electronic devices which help to investigate their minds and gains the vision into the digital information.

• Establish Credibility: The digital information collected from the devices helps in creating the credibility to prove or disapprove any point or fact and can confirm the truthfulness of the allegations made in the divorce cases.

• Overrides privacy and deletion: The technology can also help in recovering the deleted files and unveil the hidden information which can be very valuable as evidence in the divorce cases.

Thus, the rules to rely on the digital evidence are-

1. 1. Admissible
   2. Authentic
   3. Complete 
   4. Reliable

• Believable

Admissibility of Digital Evidence in Divorce Cases:

The admissibility of digital evidence in divorce cases is subject to the legal considerations and jurisdiction-specific rules. The admissibility of the digital evidence in Hindu Divorce Cases hinges on foundational principles outlined in the Indian Evidence Act,1872. Emails, text messages, social media posts, and digital communications are often crucial in establishing the grounds for divorce. 

However, establishing the authenticity of digital evidence poses a significant challenge. Courts may require the party presenting the evidence to prove that it has not been tampered with or manipulated, so the forensic experts may be called for such purpose. Thus, the Courts accepts the digital evidence when it meets the certain criteria; viz.: –

• Relevance: The digital evidence should be directly related to the issue in the divorce case, i.e., it must be relevant to the case, such as proving the grounds of the divorce like adultery, cruelty, or financial impropriety. In other words, it must be related to the incident to prove something.

• Authenticity: Parties need to establish the authenticity of the digital evidence, demonstrating that it accurately represents the information it claims to portray. This may involve the source and integrity of the digital content. The techniques used to collect the digital evidence must not cast doubt on the authenticity of the evidence. 

• Hearsay Rules: Courts may assess whether the digital evidence falls under hearsay rules. If the evidence is considered hearsay, its admissibility may be subject to exceptions or limitations.

• Expert Testimony: In complex cases involving digital forensics, experts’ testimony may be required to explain the origin, integrity, and significance of the digital evidence. It is important that the digital evidence must be collected and preserved by the experts in accordance with the legal requirements and industry standards to properly evaluate its content and authenticity. Without the proper preservation and collection, digital evidence can easily be dismissed as inadmissible or unreliable, making it useless in a divorce litigation.

• Chain of Custody: Maintaining a clear chain of custody is crucial. The party presenting the digital evidence must show that it has not been tampered with or altered since its discovery. Courts may require the party presenting the evidence to prove that it has not been tampered with or manipulated. Forensic experts may be called upon to verify the integrity of digital content, emphasizing the importance of maintaining a clear and unbroken chain of custody.

• Privacy Concerns: Courts may weigh the privacy implications of digital evidence in divorce litigations. If a party argues that the evidence was obtained in violation of privacy rights, it could impact its admissibility.

Legal system worldwide are adapting to the challenges and opportunities presented by the digital evidence. Parties involved in the divorce cases should work with the legal professionals who are well-versed in the rules and standards governing the admissibility of digital evidence in their specific jurisdiction. Thus, the digital evidence which is to be presented, must fulfil all the necessary conditions as provided under the Indian Evidence Act, to make it admissible in the Court of Law. Non-compliance of any of the conditions as provided under the law, may make the digital evidence inadmissible. 

#Case: “Preeti Jain” V. “Kunal Jain & Another” (2016), the High Court of Rajasthan while deciding the civil writ petition observed that the application filed by the non-applicant under Section 65-B read with Section 122 of the Indian Evidence Act,1872; against the admissibility of the electronic record filed by the applicant husband along with the affidavit in evidence in support of the divorce petition was rightly rejected by the Family Court. The Family Court ordered that the electronic records without the requisite certification under Section 65B of the Indian Evidence Act, can not be taken on record and read in evidence

#Case: In, “Vishal Kaushik” V. “Family Court & Ors.,” the Court while examining the final judgment in a divorce case has observed that a Compact Disc containing the conversation between the husband and wife, recorded without the consent of the wife cannot be termed as admissible evidence. 

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Challenges in Digital Landscape:

There are various challenges to make the digital evidence admissible in the Court of Law, especially in divorce cases as the privacy of the husband and wife is an immense concern. In divorce litigation, there are various implications to consider when utilising digital evidence. The amount of digital evidence that can be legally accessed and presented in court is increasing, and requires a great deal of attention to the legal implications of using such evidence.

Following are few challenges to make the digital evidence admissible in the Court: –

• Authentic Concerns: Proving the authenticity of digital evidence is a constant struggle. With the ease of photo and video manipulation, establishing the credibility of content becomes paramount. Courts may question the origin and integrity of digital files, necessitating technical expertise and robust forensic analysis.

• Privacy Issues: The sensitive nature of personal communications and data raises privacy concerns. Parties may object to the admissibility of certain digital evidence based on an invasion of privacy, arguing that it infringes upon their privacy rights. Striking a balance between privacy rights and the need for truth is a delicate tasks for the judiciary.

• Complex Process: The use of digital evidence can complicate the already complex process of divorce litigation. It may become very difficult for the counsel to comply with the provisions of Section 65B of the Evidence Act, to make the evidence admissible and can create additional work load. For instance, the presentation of the digital evidence can create disputes over the relevancy and privilege which can delay proceedings.

• Digital Illiteracy: Not all individuals involved in divorce cases may be technologically savvy. Courts must navigate cases where one party may not fully comprehend the implications of digital evidence, leading to challenge in presenting and understanding the material. The attorneys need to be well-versed in the legal implications of digital evidence in order to ensure that it is used properly and effectively, which may become a hectic work for some as it is not necessary that every person acquires digital knowledge.

• Hearsay and Electronic Records: The admissibility of electronic records often faces scrutiny under hearsay rules. Courts grapple with determining the reliability of digital communications and whether they qualify as admissible evidence. Parties need to establish the authenticity of electronic records to overcome hearsay objections.

• Possibility of Tempering: There are the chances of tampering the digital evidence which may divert the case in different direction. The Digital evidence can be misinterpreted or misrepresented, leading to inaccurate or misleading conclusions within the case. In divorce litigations also, there are more chances of tampering the digital evidence as both husband and wife know each other and may while living together alter or tamper such evidences.

• Evolving Technology: Rapid advancement in technology mean that legal systems need to continually adapt to new forms of digital communication and storage. This creates challenges in keeping legal framework up-to-date. Understanding and presenting digital evidence can be challenging for individuals and legal professionals. Courts may struggle with cases where the complexity of the evidence exceeds their technical expertise.

• Data Integrity:  Ensuring that the data presented accurately reflects the original information is vital. Issues such as data corruption or accidental loss can compromise the reliability of digital evidence.

• Emotional Impact: Digital evidence often involves personal and emotionally charged content. Courts must navigate the emotional impact of such evidence while remaining focused on its legal relevance and admissibility.

• Expert Testimony: Complex cases may require expert testimony from digital forensics specialists. However, the availability and cost of such experts can be a challenge for parties involved in divorce cases. 

The Way Forward: 

To address these challenges, legal practitioners, judges, and lawmakers must adapt to the evolving digital landscape. Specialized training for legal professionals in handling digital evidence and establishing best practices for its admission can enhance the efficiency of the legal process. Addressing these challenges requires a nuanced understanding of both legal principles and technological intricacies. Legal professionals, alongside forensic experts, play a crucial role in ensuring the proper handling and admissibility of digital evidence in divorce cases.

 

Sections 122 of Indian Evidence Act, 1872:

Now, the question arises whether the admissibility of digital evidence in the divorce cases are against the provision of Section 122 of the Indian Evidence Act,1872, which provides the privilege communications during the marriage between the husband and wife cannot be disclosed in the Court. Section 122 provides that, “No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”

So, it is clear from the above provisions that the presentation of any private communication or any other type of digital evidence is against the provision laid down under Section 122 of the Indian Evidence Act, as the admissibility of the privilege communication between the husband and the wife is an exception to the said provision under the divorce cases.

#Case: “Meenakshi”

                 Versus 

1. 1. “Judge, Family court, Sriganganagar,” and

• “Alok Agnihotri,”                                           Civil Writ Petition No. 13764/2017                                            

The above said writ petition was  filed by the petitioner against the order passed by the Family Court, Sriganganagar. The petitioner objected that the compact disc produced by the respondent no.2 is the private conversation between the husband and wife and hence, cannot be produced as evidence in the matrimonial dispute as per Section 122 of the Indian Evidence Act. The Hon’ble High Court of Rajasthan held that the compact disc in the present case is admissible as a piece of evidence and dismissed the petition. The Court also stated that the provisions of Section 14 and 10(3) of The Family Courts Act,1984 empowers the family court to receive as evidence any document which in its opinion will enable the court to deal effectually with a dispute whether the same evidence otherwise relevant or admissible under the Evidence Act and lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings. 

 

Conclusion: 

While the digital evidence presents a wealth of information for establishing grounds in divorce cases, its admissibility requires a nuanced approach. All the conditions mentioned under the Indian Evidence Act, must be complied with to make the digital evidence admissible in the Court of Law. Courts must be equipped to handle the complexities of the digital age, ensuring a fair and just resolution for parties involved. As technology continues to advance, the legal system must evolve in tandem, fostering a balance between embracing the benefits of digital evidence and safeguarding the rights and privacy of individuals. 

References:

• The article – The Use of Digital Forensics in Divorce Cases is originally written by Brad Anderson and the link of the article is https://readwrite.com/digital-forensics/ 
• The article – The Role of Digital Evidence in Divorce Litigation is originally written by Ned Thorton and the link of the article is https://www.privacyend.com/divorce-digital-evidence/ 
• The Indian Evidence Act, 1872
• The Family Courts Act,1984
• https://forensicdiscovery.expert/digital-forensics-in-divorce-cases
• https://indiankanoon.org 
• https://www.livelaw.in