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Arunima Saha   16 May 2017

How to make electronic evidences as 'admissible evidence'?

I got married in 2013 and got driven out of my matrimonial residence in 2014. My husband demanded mutual divorce, which I rejected. I filed a case for Restitution of Conjugal Rights in late 2014 after repeated requests by me via postal letter, emails, SMS and telephonic conversations for restoration of our marital tie. In 2015 my husband filed a contested divorce case where he has alleged (amongst several other allegations) that I had voluntarily deserted him. Both the cases have now reached analogous-hearing stage in lower court where I need to exhibit my annexures (postal letter, email, SMS, etc) to confirm it was not a voluntary desertion.

Now, the opposition lawyer is an extremely notorious, but equally efficient and speaks to the point. I have listed below my relevant annexures and the roadblocks I am facing to exhbit those as admissible evidence in court.
 

 

Postal Letter: I had sent an unregistered (without AD card) postal letter via Speed Post in 2014 to my husband with a prayer to revive our conjugal tie. I have kept a carbon copy of that letter to myself. Its a carbon copy not xerox, and posted the original copy to my husband by Speed Post. I had preserved the postal slip too. Two days later he himself received the letter, but has never bothered to reply back. Thereafter, I downloaded the tracking history of the consignment from the official website of India Post. The printout taken from the internet contains the browser url of the India Post website as well as date & time of printout and IP address of the computer from where the printout has been taken.

 
My greatest blunder was I sent the postal letter by unregistered Speed Post (without AD card). I am not at all acquainted with the procedures and features of Indian postal department; in fact, this was the first time I had ever posted a letter via Speed Post. I didn’t even know what an AD card is. But it was very disappointing that in the past 2.5 years my lawyer also didn't notice the absence of AD card in my annexures. During tendering, the Ld Judge was asking for the AD card which we couldn’t produce. Had it been noticed earlier I could have at least got the consignment tracking record authenticated from the post office within 3 months after sending the letter.

Thus being unaware of the technical twists of the law, I didn't authorize the internet-generated tracking record from the post office with stamp-seal and signature. The opposite lawyer now claims in court that my husband has never received such a letter and the internet-generated Tracking record has been manufactured in my personal computer. Besides, the opposition lawyer also objected to the carbon copy of the hand-written letter saying it lacks the original signature of the sender and so should not be considered. My lawyer never informed me about the technical twist that carbon copy of the letter will not be admissible as evidence until and unless I sign the carbon copy in originals (in pen). The carbon copy of the letter contains my signature as carbon print.

Question 1: Is the internet-generated tracking record not admissible as valid evidence in court until and unless it is authorized? In other words, is AD card the only acceptable evidence in court regarding postal service and the unauthorized internet-generated tracking record holds no weightage?
Question 2: Will it serve my purpose if I include this tracking record under my declartions for section 65B of the Indian Evidence Act?
Question 3: If this genuine evidence gets rejected in lower court purely due to technical reasons, is it advicable to appeal to higher court? Have you ever had any experience where an unauthorized tracking record has been accepted in court even in absence of AD card?

 


SMS: Now coming to SMS. I had obtained printout of several SMS communications between myself and my husband (which confirms his intention of divorce and separation and my intention to save the marriage), by transferring those SMS from my handset to my laptop via USB port and then taking prinouts. We have filed an affidavit under section 65B of the Evidence Act for those SMS. The court also took custody of my Nokia mobile handset (along with its IMEI number) and mobile charger, most probably as 'inadmissible evidence'. However, the opposition hugely objected saying those SMS are manufactured ones.

Question 4: How to make the SMS evidences as Admissible Evidence? The oppostion is screaming even after we have made declaration under 65B of the Evidence Act. The judge seems to be at par with the opposite lawyer.


Email: Several email communications between myself and my husband have been submitted as printouts which confirms my desire of marital restoration. The email printouts contain server URL, date and time of printout, as well as the IP address of the computer terminal from where the printouts have been taken. Also we have declared an affidavit under section 65B of Evidence Act. Besides, a CD has also been submitted in court containing soft copy of those emails. However, I think the emails too have been labelled as 'inadmissible evidence'. No doubt the opposition hugely objected saying those emails are manufactured ones.

Question 5: What else can be done to exhibit these Electronic Evidences as admissible and Primary evidence, as per law?



 2 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     16 May 2017

he Indian Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000 (Before amendment). Section 3 of the Act was amended and the phrase “All documents produced for the inspection of the Court” were substituted by “All documents including electronic records produced for the inspection of the Court”. Regarding the documentary evidence, in Section 59, for the words “Content of documents” the words “Content of documents or electronic records” have been substituted and Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence.

Arunima Saha   19 May 2017

The judge is not considering any 65B of Evidence Act or whatsoever. No theoritical or legal documentation is working for me.

The opposite lawyer is screaming that those electronic evidences are 'manufactured' in personal computer and the judge is supporting the opposite lawyer saying the onus to prove the validity of the annexures lies of the submitting party. The judge has piled up and filed up the annexures as 'inadmissible evidence'.

Is there any other way for me to deal with the situation other than appealing in the High Court?

 

 


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