In present times, people use social media as an online journal. A complete stranger might get quite an insight about your life by merely 10 mins of research. This might not play so good in divorce proceedings as everything you post on social media, is up for grabs in your divorce. Anything and everything may be used against you. Hence, it is advisable to take a break from social media during divorce proceedings.
Admissibility of electronic evidences
Sensing the need for a new legislation the Indian Evidence Act was amended to provide for the admissibility of electronic evidence
Section 2(t) of the Information Technology act defines “electronic record” as “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or compute generated micro fiche”
Section 65B of the Indian Evidence Act provides the provision for the admissibility of electronic evidences. It states that any information contained in an electric form is deemed to be a document and is admissible in evidence without further proof of the production of the original.
In the case of “Ram Singh v. Col. Ram Singh” the supreme court while affirming the admissibility of electronic evidence held that the law of evidence must take advantage of the technological advancements if accuracy of the same can be ascertained.
Digital lipstick on your collar
In cases where the ground for divorce is adultery, profiles on dating sites and posts with mistress maybe used to prove extra marital affairs. Additionally, messages and chats of the cheating spouse with the mistress maybe used as electronic evidence as well.
In “State of Delhi v Mohd. Afzal and others” the supreme court held that electronic evidences such as WhatsApp messages, SMS/MMS and other electronic evidences are fully admissible in the court of law. Further while addressing the issue of misuse and accuracy of theses evidences due to technical errors, it held that the court must ask for a certificate signed by the person operating computer resource and generating that information. It also held that the burden of proof is on the person challenging the electronic data.
However, admitting WhatsApp chats or messages as evidence will require a “certificate of authenticity”
It is common for spouses or ex-spouses to try and misrepresent or hide assets during the divorce proceedings, with the intent to reduce the amount of alimony and child support. In such cases, posts of the spouse leading a luxurious lifestyle or on expensive vacations may be used against them.
Further e-mails of the spouse that reveal the actual net worth of a person may be used as evidence against them. If one party has legal access to the other party’s email account, the transmissions sent by the address owner, will be evidence admissible in Court.
Texts sent to spouses, children or friends and family members can show the mental state of a person. For example; a chain of heated texts to a spouse or ex-spouse can be used to prove anger issues. Which may not be healthy for the child.
Additionally, posts where a parent is abusing alcohol or any drug, when they are supposed to be looking after the child can be used to prove one as an unfit parent.
Certificate of Authenticity
However, social media can be used against an ex-spouse only when a certificate of authenticity is produced before the court. The purpose of the certificate is to satisfy the conditions laid out by the preceding sub-section (2) of Section 65B of the Evidence Act. The entire purpose of the certificate is to ensure the integrity of the data being produced.
Under section 65B of the Indian Evidence Act, non-technical conditions are a requirement of a certificate of Authenticity.
- This certificate requires the signature of a person who occupies a responsible position in relation to the device through which the data has been produced.
- The certificate must identify the electronic record containing the statement, describe the manner in which it was produced and also give such particulars of any device involved in the production of the electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer.
- The certificate must also deal with any of the matters to which the conditions for admissibility relate.
Thus, it is necessary to be cautious if you continue to use social media during divorce proceedings. In cases that are “he said vs. she said.” Social media posts can provide one party with the evidence they need to prove a fact in question during a divorce. However the use of social media chats and posts in court are subject to conditions.
About the Author – Aditya Pratap
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at email@example.com.
This Article is made by Aditya Pratap in assistance with Karthyayani Amblimath.
Cases argued by Aditya Pratap can be viewed here.
Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.