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This article has been researched and written by Advocate Aarun Chanda, who practices divorce law in Mumbai and Pune. It is intended solely for academic purposes and should not be construed as legal advice. The views expressed are personal. Readers are encouraged to consult a qualified lawyer or advocate specializing in divorce cases for professional legal guidance.

1. SECTION 65B

A client once thrust his phone at me across the table, screen glowing, thumb trembling slightly with the particular excitement of a man who believes he has just won his case. “Sir, look. She admits it. Right here, in writing.” I looked. There it was — a WhatsApp message, damning on its face, exactly as he described. I handed the phone back and asked him a question that visibly deflated him faster than any cross-examination could have: “Who else has seen this chat, on this phone, since the day it was sent?” He blinked. “Just me.” “And before that?” “I mean — I’ve shown it to my brother. And my mother. And I forwarded it to myself on email, just to be safe.” I remember thinking, not unkindly, that he had done everything a worried husband instinctively does to protect evidence, and almost nothing a court would actually accept as protecting it. By the time that chat reached my chamber, it had already travelled through three different hands and two different devices, and not one of those hops had been documented. In evidentiary terms, he did not have a WhatsApp message. He had a story about a WhatsApp message, and a court is under no obligation to believe stories, however sincerely told.

That distinction — between having evidence and having proof of evidence — is, in my experience, the single most under-appreciated concept in Indian courtrooms today, and nowhere does it bite harder than in family law, where marriages now dissolve in group chats and cruelty is alleged through Instagram stories as readily as it once was through eyewitness testimony.

2. THE OLD GATEKEEPER: SECTION 65B

For the better part of two decades, the gate through which every electronic record had to pass before an Indian court would rely on it was Section 65B of the Indian Evidence Act, 1872. The provision rested on a fairly sound intuition: a computer-generated record — a printout of an email, a burned CD of CCTV footage, a screenshot of a text message — is not the same kind of thing as an original signed document. It is, by its nature, a copy, an output, something that passed through a machine and could, with the right skill or the wrong intentions, be altered along the way without leaving an obvious mark. Section 65B therefore refused to treat such “computer output” as admissible secondary evidence unless it arrived with a certificate — a sworn statement identifying the device that produced it, confirming that the device was functioning properly, and vouching for the process by which the record was extracted.

This was not, in its origins, a controversial idea. It became one only because Indian courts spent years arguing about how strictly to enforce it. In Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473, the Supreme Court held the certificate to be mandatory, sweeping away an older, looser practice of admitting electronic material as ordinary documentary evidence. A few years later, Shafhi Mohammad v. State of Himachal Pradesh (2018) tried to soften that position, suggesting the requirement could be waived where a party genuinely lacked possession of the device in question — a well-meaning exception that, in practice, opened the door to a great deal of evidentiary sloppiness. The Supreme Court shut that door in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1, restoring the certificate to full mandatory status. But the Court, to its credit, did not simply leave litigants stranded when the relevant device belonged to someone else entirely — an opposing spouse, a telecom company, a bystander who happened to record a video. In such cases, the party wishing to rely on the record may approach the court and ask it to summon whoever controls the device, directing that person either to produce it along with the certificate or to furnish the certificate independently. The duty to certify travels with control over the device, not with whoever happens to want the evidence admitted, and the court’s own coercive power exists precisely to bridge that gap.

3. THE NEW GATEKEEPER: SECTION 63 OF THE BHARATIYA SAKSHYA ADHINIYAM

Since the 1st of July, 2024, Section 65B has given way to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, and while the underlying philosophy has not shifted an inch, the machinery around it has been rebuilt with considerably more precision. The certificate is no longer a single, somewhat freeform declaration. It now arrives in two mandatory parts. Part A must be completed by the person in actual charge of the device or computer system that generated the record — someone who can speak, with authority, to how the record came to exist and how it was stored. Part B must be completed by an independent expert, competent to vouch for the technical soundness of the extraction process. And both parts must record something that the old Section 65B never demanded in quite this form: the hash value of the record — a cryptographic fingerprint, typically generated using an algorithm such as SHA-256, that will change dramatically if even a single character of the underlying file is altered afterwards. Capture the hash value at the moment of extraction, and you have built a permanent, mathematically verifiable seal around the record — a seal that will crack visibly the instant anyone tries to tamper with what lies beneath it.

The Supreme Court had occasion to explain exactly why this additional rigour was necessary when the provision’s constitutionality was challenged this year in Pune Bar Association v. Union of India (2026). A Bench of Justices Surya Kant, Joymalya Bagchi, and Vipul M. Pancholi rejected the argument that the dual-certificate, hash-value regime imposed an unreasonable burden on ordinary litigants, observing that an electronic record is a peculiarly fragile species of evidence, “liable to continuous mutation and modification,” a vulnerability that has only sharpened with the arrival of artificial intelligence and deepfake technology capable of manufacturing convincing fabrications from nothing at all. Given that reality, the Court held, a requirement designed to lock a digital record’s authenticity in place at the moment of its capture bears an entirely rational relationship to the object the law is trying to achieve. The same judgment also cleared up a genuine practical headache: several courts had assumed that only an expert formally notified under Section 79A of the Information Technology Act could sign Part B, a narrow pool of government examiners often stretched thin. The Supreme Court disagreed, holding that any person with genuine, demonstrable expertise in computer science and cyber forensics may sign Part B, so long as the court is satisfied of that expertise on credible material — Section 79A notification is one path to establishing credibility, not the only one available.

4. WHERE ADVOCATES TRIP — REPEATEDLY, PREDICTABLY

Having watched this play out from both sides of the Bar over the years, I can say the mistakes advocates make with electronic evidence tend to repeat themselves with almost comic regularity.

i. The most common is presenting a screenshot or printout as though its content alone carries persuasive weight, without any certificate attached at all — treating the record as self-proving simply because it looks convincing on the page. It is not, and a court is entirely within its rights to disregard it until the certification requirement is met.
ii. The second is misunderstanding the difference between primary and secondary electronic evidence. Section 57 of the BSA makes clear that the original device itself, produced before the court, counts as primary evidence requiring no certificate whatsoever. I have seen advocates labour to certify a printout when their client’s own phone — the actual source of the message — was sitting untouched in a drawer at home. Sometimes the simplest evidentiary route is also the most obvious one, and it is routinely overlooked.
iii. The third mistake is treating certification as an afterthought, something to be tidied up if the point is ever raised, rather than a threshold requirement to be satisfied before the evidence is even tendered. Arjun Panditrao does allow a certificate to be supplied at a later stage where genuinely unavailable earlier, but relying on that leniency as a matter of strategy rather than necessity invites objections, delay, and an opposing counsel who now has ample warning to prepare a rebuttal.
iv. The fourth is getting the signatories wrong — Part A signed by someone with mere physical custody of the device rather than genuine knowledge of how the record was generated, or Part B left blank altogether under the mistaken belief that a notified examiner was unavailable and therefore the requirement could quietly lapse. It cannot, and after Pune Bar Association, there is no longer even the excuse of scarcity.
v. The fifth, and the one I would urge every practitioner to take most seriously, is failing to test the other side’s electronic evidence with the same scepticism one would want applied to one’s own. It is far too easy, in the heat of a hearing, to let an opposing party’s screenshot pass unchallenged in cross-examination. A disciplined advocate asks for the certificate, checks the hash value, and probes the chain of custody every single time — because that is often where a fabricated case quietly comes apart.

5. THE PROCEDURE, IN PRACTICAL TERMS

Stripped of its technical dressing, the path to getting an electronic record admitted runs through a fairly predictable sequence. Determine first whether you are dealing with the original device, which needs no certificate, or a copy, printout, or extraction, which does. If certification is required, obtain both parts of the Section 63(4) certificate — Part A from whoever actually controls the device, Part B from a qualified expert — before you seek to place the record before the court, not after. Ensure the certificate records the hash value and the algorithm used to generate it. File the certificate together with the record itself as part of your evidence at the earliest opportunity. If the device sits with someone else — an opposing party, a witness, a service provider — apply to the court under the Arjun Panditrao framework for a direction compelling production or certification. And once your own evidence is in, be ready to have it tested on cross-examination exactly as rigorously as you intend to test the other side’s.

6. THE SAME TOOL, USED BOTH WAYS

None of this rigour exists in a vacuum, and it would be naïve to pretend otherwise. The same ease with which a genuine screenshot can prove cruelty in a matrimonial case is the same ease with which a fabricated one can manufacture it. I have encountered doctored images presented with total confidence, messages lifted out of a longer conversation and stripped of the context that would have explained them entirely innocently, and — memorably, and unhappily — an account that had been quietly accessed without its owner’s knowledge, its private contents then produced in court as proof of an affair that may never have existed at all. The certificate and hash-value requirements are not bureaucratic friction imposed for its own sake. They exist precisely to force this separation between what is genuine and what has been engineered to look genuine, before a judge is ever asked to decide a family’s future on the strength of either.

There is a sharper consequence here that clients rarely see coming, and I make a point of spelling it out early. Section 72A of the Information Technology Act, 2000 makes it a criminal offence to intercept or disclose another person’s personal information obtained in breach of a lawful contract, and a spouse who breaks into the other’s phone or email account to harvest “evidence” is not engaging in clever self-help — they are potentially committing a separate crime, one that can generate its own criminal complaint running entirely apart from, and sometimes well before, the matrimonial case they were trying to strengthen in the first place. I have had to say this plainly to more than one client convinced that a righteous motive excuses an unlawful method. It generally does not.

7. A CLOSING REFLECTION

What strikes me most, stepping back from the technical detail, is how much humility this entire body of law asks of the courts and, by extension, of us as advocates. No judge is expected to look at a screenshot and simply trust their own eye. The law insists instead on a documented, verifiable chain — who controlled the device, how the record was captured, whether it remains identical to what was originally created, and who is willing to put their professional credibility behind that claim. In an era when a passably convincing fake is available to anyone with modest technical skill and a grudge, that humility is not a bureaucratic indulgence — it is the only thing standing between a courtroom and a very expensive guessing game. My client with the forwarded, re-forwarded WhatsApp message eventually got his evidence in, properly certified, hash value and all, and it did exactly the work he had hoped it would from the start. But it took the long way round to get there — which is, I have come to think, precisely the point. The rule of law does not ask us to trust appearances. It asks us to prove them, one signature and one hash value at a time.
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