Admissibility of electronic evidences

Admissibility of electronic evidences

The advent of technology has changed and evolved rapidly with the changing needs of society. This increasing reliance on electronic means of communication as well as storage of information in digital form becomes a reason to transform the law relating to information technology and rules of admissibility of electronic evidence in legal matters. The Information Technology Act hereinafter referred to as IT Act and its amendment are based on the United Nations Commission on International Trade Law model law on Electronic Commerce. The IT Act was amended to allow the admissibility of digital evidence. Apart from this, amendments are also made in the other legislation including the Indian Evidence Act, Indian Penal Code, and the Banker’s Book Evidence Act to recognize the electronic evidence.

What is the meaning of electronic evidence?

According to the IT Act, electronic evidence includes data, sound, images generated or recorded and sent or received through electronic form. It covers an extensive variety of formats in which data can be produced. To illustrate, video footage, telephonic recordings, hard drives, e-mails, pictures, sound recordings, pen drives, etc. are few examples of electronic evidence.

What are the provisions under the Indian Evidence Act?

The Indian Evidence Act was amended by the virtue of the IT Act, and the term “evidence” includes “electronic evidence”, thereby allows the admissibility of the digital evidence. Otherwise, the definition of evidence is given under Section 3 of the Indian Evidence Act, which includes oral and documentary evidence. Oral evidence can be said the statements which are made by the witnesses before the court, whereas the documentary evidence is one which is produced before the court for its inspection including electronic records.

Electronic records as evidence: –

Section 65A and 65B were introduced in the Indian Evidence Act to incorporate the admissibility of electronic evidence. Section 65B spells out the procedure of proving the contents of electronic records which have been laid down under Section 65A. Hence, any documentary evidence in form of an electronic record can be proved only in accordance with the procedure given under Section 65B of the Evidence Act.

What are the conditions under Section 65B?

Since Section 65B provides technical conditions for admissibility of electronic evidence to make sure that there is no unauthorized use of data and the device storing the electronic record was working properly. These technical conditions are discussed below: –

  • A computer must be in regular use at the time of the creation of the electronic record.
  • The category of information contained in the electronic record must have been regularly and ordinarily fed into the computer.
  • The computer system was operating properly.
  • The second copy copy must be a reproduction of the original electronic record.

Certificate under Section 65B: –

Despite the technical conditions Section 65B also requires non-technical compliance which is a certificate of authenticity. The purpose of the certificate is to satisfy the fulfillment of the technical conditions mentioned above. Such certificate is required to be executed or signed by a person holding a responsible position relating to the device through which the data has been produced. Besides this, the particulars of the certificate must include the identification of the electronic record through a statement, the manner in which the data was produced, and any other appropriate details of any tool occupied in the production of the electronic record. The entire idea behind the certificate is to ensure the integrity of the source and the authenticity of the data.

When an intended party can file the certificate?

According to the former view with regard to the filing of the certificate, it must be filed along with the reproduction of the electronic record and not subsequently. But now various courts are of the view that the certificate under Section 65B is not mandatory to be filed along with the reproduction of the electronic data. The Hon’ble High Court of Delhi in its verdict in a case titled as Kundan Singh vs. The State, 2015 SCC Online Del 13647 held that the certificate under Section 65B of the Evidence Act can be filed subsequently and does not mandatorily have to be filed alongside the reproduction of the data.

Correspondingly, the Hon’ble Orissa High Court while dealing with the bail application in a case titled as Pravata Kumar Tripathy vs. Union of India, 2014 SCC Online 407 held that it is not at all necessary to ask the prosecution to first satisfy the fulfillment of all the criteria of filing the certificate under Section 65B of the Evidence Act, before taking into account the digital records.

Presumptions with regard to electronic evidence: –

The Act also provides some presumptions in order to facilitate the use of electronic records. According to Section 85, the court shall presume that every electronic record claimed to be an agreement was concluded by affixing the electronic signatures of the parties. Likewise, Section 85B, allows the court to assume that the secure electronic record has not been changed since the specific point of time to which the secured status relates until proven to the contrary. Moreover, Section 85C provides for presumptions as to the accuracy of the information contained in an electronic signature certificate.

Conclusion: –

As per legal provisions, the satisfactoriness of the secondary evidence has to be considered within the parameters set under Section 65B of the Indian Evidence Act. However, despite well-settled legal provisions as well as various judicial pronouncements stressing the significance of the certificate, the certificate has become a mere formality. With the continuous progress of internet, it becomes vital for the courts to promote certainty in the use of such electronic records while keeping up with the changes in web technology by taking into account the practical aspects.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali



Legality of divorce granted by the foreign court to a couple married in India

Legality of divorce granted by the foreign court to a couple married in India

Undeniably most of the Indians from the states such as Punjab, Haryana, and Gujarat have immigrated to foreign counties including Canada, Australia, US, and UK, etc. The majority of these NRI litigants find it difficult to travel to India for the sole purpose of matrimonial litigation; therefore, they opt to initiate legal proceedings in their country of living. However, this practice is mostly preferred in divorce cases, legal separation and child custody, etc. Without a doubt, the breakdown of the matrimonial institution may land a person into a complex situation due to various associated things with this institution. In the case of an NRI couple, the matter could be more complicated because Indian citizens staying abroad and facing matrimonial issues often find themselves in the dilemma of whether to file a divorce in a foreign country or not.

What is provided under the law?

Like other developed nations Indian law also has an optimistic and internationally acceptable approach for legalizing foreign judgments. As per Section 13 (a) of the Civil Procedure Code, 1908 hereinafter referred to as ‘CPC’, a foreign judgment is conclusive which is adjudicated by any foreign court of competent jurisdiction subject to certain conditions. Now the question arises what are those conditions? These conditions are explained below: –

It should be pronounced by the court having competent jurisdiction: – The court of competent jurisdiction would be a place where the parties have performed marriage or where the parties last resided together, or where the person is residing against whom the proceedings have been initiated.

It must be adjudicated on the basis of merits: – If the opposite party has not been given an opportunity to appear or lead the evidence, it will not be considered decided on merits. Thus, the ex-parte foreign decree will not be recognized by the Indian courts.

It should be delivered on the basis of grounds recognized by the Indian law: – Meaning thereby only on the grounds under which the divorce can be granted in India the foreign divorce decree must be founded on those grounds. To illustrate, cruelty, adultery, desertion are some grounds for divorce in India. In Narsimha Rao and Ors. Versus Y. Venkata Lakshmi and Anr.,1991 SCR (2) 821, the Hon’ble Supreme Court held that “the jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.”

Proceedings of the judgment must be in accordance with natural justice: – The best example of this is a situation where the respondent is in a foreign country and could not join the proceedings. Under these circumstances, the foreign divorce decree is not valid in India.

It should not be obtained by fraud: – Judgement or decree obtained by fraud or coercion could not be executed in India.

It must not breach any law in force in India: – If any part of the judgment is found to be in breach of any law enforceable in India then it will not be recognized in India.

Presumption regarding the foreign judgment

As per Section 14 of CPC, the court shall presume a certified copy of the foreign judgment to be a judgment pronounced by a court of competent jurisdiction unless any evidence in contrary is produced on the record. However, such presumption could be shifted by proving want of jurisdiction.

What if the parties actively attend the proceedings?

When divorce proceedings are going on in a foreign land and both the parties actively participated in the same, then the chances of an Indian court entertaining the same matter are very less. In Mrs. Anoop Beniwal Versus Dr. Jagbir Singh Beniwal, AIR 1990 Delhi 305, the Hon’ble Delhi High Court refused to entertain the matter by considering the fact that both the parties had ample opportunities to present their case before the UK Court and the case was not against the natural justice.

What if parties do not attend the proceedings?

There are chances that one of the parties does not attend the divorce proceedings owing to some reasons such as non-service.  This would imply that the non-applicant did not submit to the foreign court’s jurisdiction. In such a scenario, an Indian Court may hear a challenge to a foreign court’s divorce decree.

Doctrine of Comity

According to this principle, all courts around the globe decide the rights of the parties and, as a result, demonstrate mutual respect. This principle originated by the Courts of England, which was later recognized by the Hon’ble Apex Court. In a case titled Alcon Electronics (P) Ltd  Versus Celem S.A. of FOS 34320 Roujan, France, 2016 SCC Online SC 1444, the Hon’ble Supreme of India observed that “the principles of comity nation demand us to respect the order of the English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 of the CPC.”

Execution of foreign divorce decree in India

There are two ways to enforce a foreign divorce decree. Firstly, if a judgment has been passed by a court of reciprocating territory then an execution petition can be filed under Section 44-A of the CPC. Secondly, by filing suit upon the foreign judgment/decree if such judgment/decree is passed by any non-reciprocating territory.

Reciprocating territories means any country or territory outside India which has been declared a reciprocating territory by Central Govt. by notification in Official Gazette for the purpose of foreign judgments. The countries such as the United Kingdom, Singapore, Bangladesh, United Arab Emirates (UAE), Malaysia, New Zealand, etc. come under the list of reciprocating territories.

In which court an execution of a foreign divorce decree can be filed in India?

As per the provisions of CPC, a judgment from a reciprocating territory seeking enforcement in India can be filed before the district court having jurisdiction to entertain the matter. If the judgment or decree has been passed by a court of a non-reciprocating territory, then a suit must be filed before the competent Indian Court.

Conclusion: –

From the above discourse, it can be concluded that a divorce decree passed by the foreign court has either to be executed under Section 44-A of CPC or a fresh suit has to be filed based on the foreign judgment. However, a foreign divorce degree is considered to be conclusive under Section 14 of CPC only if it fulfills the conditions specified under Section 13 of the Code.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali