Divorce Can Not Be Granted By A Trial/family Court Solely Based On Whatsapp Messages
1. In a recent judgement the Hon’ble Bombay High Court has observed that the trial court/Family Court can not pass a divorce decree based solely on the WhatsApp messages. The Hon’ble Bombay High Court emphasised that the trial court/Family court must strictly follow civil procedure, evidentiary value and opportunity to the opponent to refute evidence in a divorce proceeding.
2. The Hon’ble Bombay High Court’s judgement is relevant in present times as electronic communication is increasingly used as evidence in matrimonial disputes.
3. Facts of the case are as follows: –
The Hon’ble Family Court, Nashik granted divorce to a husband on the ground of mental cruelty as envisaged under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955.
The Hon’ble Family Court relied purely on the WhatsApp messages exchanged between the husband and the wife, in an ex-parte divorce decree i.e. In the absence of wife, wherein she did not get fair opportunity to refute the allegations made against her.
4. The wife approached the Hon’ble Bombay High Court challenging the decree passed by the Hon’ble Family Court, Thane, based solely on WhatsApp messages not proved as per provisions of Indian Evidence Act.
5. The Hon’ble Bombay High Court examined the issue of grant of ex-parte divorce decree exclusively based on the WhatsApp messages exchanged between the husband and the wife, without giving her opportunity to refute the allegations made against her and also in the absence of proving the electronic evidence under the relevant provisions of Indian Evidence Act.
6. The Hon’ble Bombay High Court held that WhatsApp messages are not self-supporting evidence and mere production of such messages does not automatically make them admissible as evidence legally. The Hon’ble court emphasised that WhatsApp messages must be proved as per Indian Evidence Act.
7. The Hon’ble Bombay High Court held that any electronic evidence produced before a court must be proved as provided in the Indian Evidence Act with proper authentication. In the absence of proper proof as mandated by law, such electronic evidence remains doubtful, insufficient and not reliable. Such electronic evidence i.e. WhatsApp messages must undergo test by cross examination of the party producing it in the court, to prove their source and authenticity.
8. The Hon’ble Bombay High Court held that the act of passing ex-parte divorce decree in favour of the husband without giving sufficient opportunity to the wife to defend the allegations made against her is against the principles of justice, equity, good conscience and violation of principles of natural justice.
9. The Hon’ble Bombay High Court held that the lower court must give reasonable opportunity to the husband and the wife. Both the parties must get sufficient opportunity to explain, admit, deny or challenge the evidence produced in the court.
10. The Hon’ble Court held that cruelty in matrimonial disputes must be proven through reliable, cogent, legally admissible evidence and mental cruelty cannot be proved through selective messages in the absence of context and supportive evidence.
11. The Hon’ble Bombay High Court has set aside the divorce decree and sent the case back to the Hon’ble Family Court, Nashik for fresh consideration by giving opportunity to the wife to represent her side in the present case by leading proper evidence.
12. The Hon’ble Bombay High Court’s judgement reaffirmed the legal principles that:-
i) Electronic evidence must be admissible only if they are proved as per Indian Evidence Act with proper authentication.
ii) Electronic evidence cannot be accepted on its face value.
iii) Reasonable opportunity must be given to the warring couple in a matrimonial dispute.
iv) The trail courts must strictly follow process of law as defined in different statutes.
v) The Petitioner is liable to prove his case beyond reasonable doubt and burden of proving his claims of cruelty lies on him.
vi) The courts must avoid passing divorce decrees based on evidence not standing the test of rebuttal and cross examination.
vii) Weak or untested evidence cannot justify dissolution of marriage.
viii) Courts must carefully examine the electronic evidence to avoid misuse of favourable selective and manipulated messages.
ix) Courts must give sufficient opportunity to the opponent to admit, refute or explain facts and divorce decree should not be passed in haste.
x) Legal provisions must be followed strictly.
This article is for academic purpose only and not a legal advice. The readers are advised to take proper legal advice from a practicing lawyer.
This article is researched and authored by Advocate Aarun Chanda practicing divorce law at Mumbai & Pune
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