Presentation of Electronic Media Communication in Court

Communication between Husband and Wife is considered “Privileged Communication” besides being personal and sensitive at most times. As per the Law Dictionary, a conversation that takes place within the context of a protected relationship between an attorney and client, a husband and wife, a priest and penitent, and a doctor and patient is called Privileged Communication. Privileged communication is a private statement that the recipient must keep in confidence to benefit the communicator. The law often protects against forced disclosure of such conversations. In India, we abide by The Indian Evidence Act of 1872, which applies to both civil and criminal law. As per section 122 of The Indian Evidence, 1872, “Communications during marriage.—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.”

Though Indian law gives ample power to present privileged communication, here specifically related to marital dispute, in cases and counter-cases between married couples, there is a new procedure to be followed in case the evidence is of a “sensitive” nature for all marital disputes in Family Courts under the jurisdiction of Delhi. As per a recent order by the Delhi High Court, chaired by Hon’ble DR. Justice S.MURALIDHAR and Justice I.S.MEHTA, “Where a party in a case seeks to rely upon a document which in his or her assessment or the assessment of the party’s lawyer is sensitive, viz., which contains details of a personal or private nature concerning a party or a person or their conduct, which when disclosed is likely to affect the Right to privacy, or cause embarrassment, then such party and the lawyer of such party will first apply to the Court seeking leave to produce such document in a sealed cover. Until leave is granted, the document’s contents shall not be extracted in the pleadings or a copy of the whole or part thereof enclosed with the petition. For this purpose, a document would include any writing, private letters, noting, photographs, and documents in electronic form, including video clips, text messages, chat details, emails, printed copies thereof, CCTV footage etc.”

So essentially, with the above judgment, in Delhi, all such documents have to be submitted on a sealed cover to the judge with an application as to what the petitioner/ respondent wants to show using those documents. This application may be part of a Petition or a Written Statement (WS), Replication or Rejoinder. Similarly, when the said “sensitive” evidence needs to be produced, the party will first seek permission from the Court to produce such documents. The Family Court may, wherever necessary, provide for “in-camera” proceedings to ensure the RightRight to privacy and dignity of the warring couple.

Supposedly, someone wants to give me a video clip. The same has to be cut in CD, and an affidavit to the effect of 65B of the Indian Evidence Act be created. Both these things, with a copy for the opposite party, be provided in seal cover to the Presiding Officer (Judge/ Magistrate). A separate application stating why the document should be taken on record should also be given along with the same to the Presiding Officer (Judge/ Magistrate) as to why such document is necessary for the pleadings of the case.

Please also note that the above judgment is enforceable only in Delhi at the moment.

This has been done to protect the rights to privacy and dignity of the parties and persons involved in the marital dispute. However, an important consideration is the role of the state as the guardian, the saviour that aspires to maintain stability in society.   According to recent news from Italy, almost half of the divorce cases in Italy rely at least partly on information gathered through the instant messaging service WhatsApp, according to the Italian Association of Matrimonial Lawyers. Interestingly, Gian Ettore Gassani, President of the Italian Association of Matrimonial Lawyers, noted that men were much more likely to be caught than women — though not necessarily because they cheat more often. “Women tend to delete incriminating messages or photos after seeing them,” Gassani said. “Men are more likely to save the message or photograph to come back to in the future. And that makes them more likely to get caught.” He said the most common scenario is that the unfaithful partner leaves the phone around the house, unguarded, where a suspicious spouse can open it and read the messages. {http://gadgets.ndtv.com/apps/news/whatsapp-blamed-for-increased-divorce-rates-in-italy-619847}.

Closer home, of the more than 5,000 divorce cases filed in 2013 in Bangalore, at least 3,000 are related to technology. The grounds of divorce vary from illicit messages or calls or chats or Facebook posts on smartphones getting tracked by either of the spouses to using GPS to track down a partner with a lover to an extreme case where the wife chats on WhatsApp during sex. Some even use Apps to retrieve deleted messages or photos to prove their partners are cheating on them. Gunaki Narendra Kumar, Family Court Principal Judge, said smartphones have invaded our lives. Often, SMSes and emails are submitted as evidence. {http://www.dnaindia.com/scitech/report-smartphones-facebook-whatsapp-break-down-marriages-in-bangalore-1969218}.

For understanding the basic Legal requirements of electronic evidence to be admitted in a Court of Law in India, you may read “Use of Electronic Evidence in Matrimonial Dispute”