Divorce is definitely a painful process. A relationship that begins with affection at the altar ends with negative emotions in a court room. Divorces are of two kinds- Mutual consent divorce and Contested divorces. Mutual consent divorce is one where the parties agree upon the terms of separation and amicably end the marriage; and Contested divorce is one where one of the parties to the marriage has committed a matrimonial offence. There is a burden of proof on the party who alleges that the other has committed a matrimonial offence. This is in common words called the Fault theory of divorce. Grounds of divorce are adultery, cruelty, etc.
In this digital age, the evidence of a matrimonial offence is mostly contained in a computer, laptop, mobile phone, tablet or any other computer resource. This brings into the picture The Information Technology Act, 2000. For example, in the case of an alleged adultery by a wife, the husband would present the proof of the same from the emails, whats apps and other social media interaction she has exchanged with her boyfriend. The main issue here is the manner in which the husband would obtain this data. If the husband hacks his wife’s email accounts or unauthorisedly accesses her sms he is liable under the Information Technology Act to compensate his wife for the alleged unauthorised access and is liable to be punished for hacking.
The concept of unauthorised access as elucidated in the Information Technology Act includes the act of viewing data in another person’s computer, computer resource or mobile phone without such person’s authorisation. It also makes the act of even touching another person’s computer or mobile phone without their permission an act of unauthorised access and thereby making them liable to pay compensation for the injury caused.
An extension of this concept was read into the fundamental right to life under Article 21 of the Constitution in the landmark case of Vinod Kaushik v. Madhvika Joshi, whereby the concept of right to privacy was included in the relationship of marriage also. There is a right to privacy which a spouse enjoys even in a matrimonial relation and if the other spouse unauthorisedly accesses sms, whats apps and emails to prove a ground for divorce, then it renders such an erring spouse liable under the Information Technology Act. This party presenting such evidence in a Family Court has not come to the court with clean hands, thereby restricting or negatively affecting the remedies available to him.
Also, an admittance of a party to have accessed the emails, whats apps, sms or social media profiles to collect evidence of adultery, cruelty and other grounds of divorce actually gives an incriminating evidence to the other party which can claim compensation of upto Rs. 1 Crore for unauthorized access.
Many contested divorce cases are accompanied by criminal charges of cruelty and harassment. In such cases the wives file criminal complaints under Section 498A and digital evidence is admitted by Courts both for and against the charges.
However, in both Divorce cases and such Criminal cases, Digital evidence is admitted only when it is accompanied by a Section 65B Certificate under the Indian Evidence Act in affidavit form certifying that the evidence is not tampered with and the electronic device from which evidence was obtained was property functioning at the time of extracting evidence. An exception is made for digital evidence of sms, emails, whats apps, etc which are produced in a Court along with Section 65B certificate, and such evidence is primary evidence under the Evidence Act and is surely valuable in any legal case for prosecution to prove the case and for the defense to disprove the charges.
The advent of technology and its role in relationships has brought cyber law to the forefront in divorce proceedings.