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Sudhakar (none)     20 January 2017

Mobile Messages.

Dear Experts, My Friend, a lady contesting in 498 A Case here in Hyderabad in the Court of I ACMM. Her husband sent her messages in a bad manner to her cell phone in 2012 and tortured her in many ways. Though she written as a statement that husband has torturing her through messages and phones in complaint letter. The police personnel didnot written in chargesheet about phone messages by her husband and they even didnot sent it to cyber crime to make a further enquiry about those messages at that time. Now she is about to sit in front of Honourable Judge for Chief Procedure. Now my question is Can my friend submit directly CELL PHONE which contain messages by her husband ? as a proof of Exhibits in front of Honourable Court. Awaiting for reply. Please Reply. Thanking you.


Learning

 16 Replies

Sachin (N.A)     20 January 2017

Phone messages are not cruelty under sec498a

Pawan S (06292021602) (Advocate)     20 January 2017

Why you are bothered only about the phone messages. Is that the only thing that the husband has done against the wife and due to this wife has filled 498A :)

I am sure that, the wife must have raised many allegations against the husband. So, the wife needs to provide the evidences for all the allegations. Using only the phone message as an evidence will not work.

1 Like

Dr. Atul [9013898936] (Lawyer, Scholar)     20 January 2017

While I'm no expert on matrimonial disputes, still, so far as preponderance of evidence is concerned, if the text messages are are such as to indicate harassment or cruelty, you should bring it on record. To that extent, I repectfully disagree with my peers because, if you have a piece of evidence, it makes no sense to leave it out merely becuase the investigation is shoddy or, because you have other,  stronger evidence. It is quite possible that the text messages are not the sole evidence of cruelty; it is also possible they are not the strongest evidence of cruelty. Yet, so long as they lend some credence to the allegation of cruelty, bring them on record. Remember, this is your first and possibly the last chance to bring in evidence for all stages to come in the future. 

I may be speading the net way too wide here but thats the only quick recollection I can remember at the moment: in the case of Jiah Khan's alleged suicide/alleged murder, the mother of the deceased had approached the High Court of Bombay through a Criminal Writ Petition on the ground that the police had failed to reflect the BBM messages exchanged between the accused and the deceased in the chargesheet which evidenced harassment. There was an angle of abetment and cruelty involved if I'm not wrong. The Bombay High Court had directed the Peititoner to meet the Commissioner of Police with her grievances (Criminal Writ Petition No.919 of 2014, Rabia Khan v. State of Maharashtra & Ors.). This is what was submitted on behalf of the State:

Order dated  21.04.2014: "learned prosecutor Mrs. Kantharia submitted that the B.B.M. SMS record, forensic report in respect of one Laptop, I­Pad and two mobile phones belonging to the deceased is accused, are yet to be received by the Investigating Agency"

Ultimately, CBI was directed to undertake further investigation vide order dated 3.07.2014. 

While I'm definitely not saying that your case needs such a drastic approach as to seek a CBI investigation, a Writ Petition may not be out of place. What I wish to emphasize is, make sure that if the text messages are of assistance to your allegations, bring them on record.

Dr. Atul [9013898936] (Lawyer, Scholar)     20 January 2017

Oh...and btw, you cannot just pull that phone out of your pocket in the course of a hearing and show it to the judge as evidence! Get hold of your call logs (from monthly bills or for prepaid, available online from the telecom service provider over a limited period), prepare transcriptts of text messages, printout screenshots of text messages and support them with a certificate under Section 65B of the Evidence Act.

Dr. Atul [9013898936] (Lawyer, Scholar)     20 January 2017

Originally posted by : autohide4u
Can phone messages lead to loss of life or limb? If not then such messages cannot be grounds to prove cruelty under 498A. Unless the messages are providing evidence of some other cruelty they are not relevant in criminal proceeding.

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

...

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Doesn't talk of loss of life or limb.

Dr. Atul [9013898936] (Lawyer, Scholar)     21 January 2017

Couldn't find the case details, but hope this is of assistance:

------------------------------------------------

Gujarat High Court refuses to quash domestic violence charges against judges

TNN Aug 31, 2016

AHMEDABAD: Gujarat high court refused to quash a complaint of domestic violence and cruelty against two judges - who are brother and sister - and lambasted the judicial officers for the language used by them in their petition. 

...

The judicial officer's wife accused them of domestic violence, cruelty, making threats and spreading obscene material through SMSs and WhatsApp messages. They have been booked under sections 498A, 506 of IPC and section 67 of the Information Technology Act.

The HC refused to quash the FIR against the judges with the observation, "This court considers it extremely painful to deal with the matter of this kind, where judicial officers are litigants on one side. What is prima facie found very shocking is the kind of aspersions cast and the language used not only on Whatssap and text messages exchanged between the parties, but also, the language used in the petition memo all throughout."

...

She furnished 92 text messages questioning her character all throughout by the brother and sister duo. 

...

However, after going through the case, the HC concluded that the wife's allegations against the judges do not appear to be result of any vengeance. The accusations, aspersion, taunts, harsh remarks used on WhatsApp and in text messages reflect that all efforts were made to humiliate the wife in the eyes of others.

-----------------------------------------

Sachin (N.A)     21 January 2017

Originally posted by : Atul (public ID)



Originally posted by : autohide4u



Can phone messages lead to loss of life or limb? If not then such messages cannot be grounds to prove cruelty under 498A. Unless the messages are providing evidence of some other cruelty they are not relevant in criminal proceeding.





498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

...

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Doesn't talk of loss of life or limb.

 

Section 498A in The Indian Penal Code

 

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

 

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]

Sachin (N.A)     21 January 2017

Originally posted by : Atul (public ID)
While I'm no expert on matrimonial disputes, still, so far as preponderance of evidence is concerned, if the text messages are are such as to indicate harassment or cruelty, you should bring it on record. To that extent, I repectfully disagree with my peers because, if you have a piece of evidence, it makes no sense to leave it out merely becuase the investigation is shoddy or, because you have other,  stronger evidence. It is quite possible that the text messages are not the sole evidence of cruelty; it is also possible they are not the strongest evidence of cruelty. Yet, so long as they lend some credence to the allegation of cruelty, bring them on record. Remember, this is your first and possibly the last chance to bring in evidence for all stages to come in the future. 

I may be speading the net way too wide here but thats the only quick recollection I can remember at the moment: in the case of Jiah Khan's alleged suicide/alleged murder, the mother of the deceased had approached the High Court of Bombay through a Criminal Writ Petition on the ground that the police had failed to reflect the BBM messages exchanged between the accused and the deceased in the chargesheet which evidenced harassment. There was an angle of abetment and cruelty involved if I'm not wrong. The Bombay High Court had directed the Peititoner to meet the Commissioner of Police with her grievances (Criminal Writ Petition No.919 of 2014, Rabia Khan v. State of Maharashtra & Ors.). This is what was submitted on behalf of the State:

Order dated  21.04.2014: "learned prosecutor Mrs. Kantharia submitted that the B.B.M. SMS record, forensic report in respect of one Laptop, I­Pad and two mobile phones belonging to the deceased is accused, are yet to be received by the Investigating Agency"

Ultimately, CBI was directed to undertake further investigation vide order dated 3.07.2014. 

While I'm definitely not saying that your case needs such a drastic approach as to seek a CBI investigation, a Writ Petition may not be out of place. What I wish to emphasize is, make sure that if the text messages are of assistance to your allegations, bring them on record.

 

Quriest has asked on 498a, and case you referred is of abetment of sucide

Dr. Atul [9013898936] (Lawyer, Scholar)     21 January 2017

Originally posted by : Sachin
Originally posted by : Atul (public ID)
Originally posted by : autohide4u
Can phone messages lead to loss of life or limb? If not then such messages cannot be grounds to prove cruelty under 498A. Unless the messages are providing evidence of some other cruelty they are not relevant in criminal proceeding.
498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
...
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Doesn't talk of loss of life or limb.
Section 498A in The Indian Penal Code
498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]

 

So you'd qualify a sub-clause with another, self-contained, sub-clause [salute]

PS: Looks like you forgot to read "or" after Section 498A(a), chief! 

Dr. Atul [9013898936] (Lawyer, Scholar)     21 January 2017

Originally posted by : Sachin

Originally posted by : Atul (public ID)

While I'm no expert on matrimonial disputes, still, so far as preponderance of evidence is concerned, if the text messages are are such as to indicate harassment or cruelty, you should bring it on record. To that extent, I repectfully disagree with my peers because, if you have a piece of evidence, it makes no sense to leave it out merely becuase the investigation is shoddy or, because you have other,  stronger evidence. It is quite possible that the text messages are not the sole evidence of cruelty; it is also possible they are not the strongest evidence of cruelty. Yet, so long as they lend some credence to the allegation of cruelty, bring them on record. Remember, this is your first and possibly the last chance to bring in evidence for all stages to come in the future. 
I may be speading the net way too wide here but thats the only quick recollection I can remember at the moment: in the case of Jiah Khan's alleged suicide/alleged murder, the mother of the deceased had approached the High Court of Bombay through a Criminal Writ Petition on the ground that the police had failed to reflect the BBM messages exchanged between the accused and the deceased in the chargesheet which evidenced harassment. There was an angle of abetment and cruelty involved if I'm not wrong. The Bombay High Court had directed the Peititoner to meet the Commissioner of Police with her grievances (Criminal Writ Petition No.919 of 2014, Rabia Khan v. State of Maharashtra & Ors.). This is what was submitted on behalf of the State:
Order dated  21.04.2014: "learned prosecutor Mrs. Kantharia submitted that the B.B.M. SMS record, forensic report in respect of one Laptop, I­Pad and two mobile phones belonging to the deceased is accused, are yet to be received by the Investigating Agency"
Ultimately, CBI was directed to undertake further investigation vide order dated 3.07.2014. 
While I'm definitely not saying that your case needs such a drastic approach as to seek a CBI investigation, a Writ Petition may not be out of place. What I wish to emphasize is, make sure that if the text messages are of assistance to your allegations, bring them on record.

Quriest has asked on 498a, and case you referred is of abetment of sucide

 

So an evidence of cruelty remains in abeyance as an evidence cruelty till the time it culimnates in suicide of the victim of cruelty [double salute]

Sachin (N.A)     21 January 2017

Dear Atul

Taunting , messages these types of harrasment is cuelty only for DV Act ot divorce or any other civil cases.

 

Here are some judgements for your refrence:

 

Gujarat high court (HC) has ruled that mere taunting and rude behaviour by in-laws is mundane and does not amount to cruelty for a woman to file an FIR against under section 498A of the Indian Penal Code (IPC).

 

 

Pawan S (06292021602) (Advocate)     21 January 2017

Pawan S (06292021602) (Advocate)     21 January 2017

Originally posted by : Atul (public ID)
While I'm no expert on matrimonial disputes, still, so far as preponderance of evidence is concerned, if the text messages are are such as to indicate harassment or cruelty, you should bring it on record. To that extent, I repectfully disagree with my peers because, if you have a piece of evidence, it makes no sense to leave it out merely becuase the investigation is shoddy or, because you have other,  stronger evidence. It is quite possible that the text messages are not the sole evidence of cruelty; it is also possible they are not the strongest evidence of cruelty. Yet, so long as they lend some credence to the allegation of cruelty, bring them on record. Remember, this is your first and possibly the last chance to bring in evidence for all stages to come in the future. 

I may be speading the net way too wide here but thats the only quick recollection I can remember at the moment: in the case of Jiah Khan's alleged suicide/alleged murder, the mother of the deceased had approached the High Court of Bombay through a Criminal Writ Petition on the ground that the police had failed to reflect the BBM messages exchanged between the accused and the deceased in the chargesheet which evidenced harassment. There was an angle of abetment and cruelty involved if I'm not wrong. The Bombay High Court had directed the Peititoner to meet the Commissioner of Police with her grievances (Criminal Writ Petition No.919 of 2014, Rabia Khan v. State of Maharashtra & Ors.). This is what was submitted on behalf of the State:

Order dated  21.04.2014: "learned prosecutor Mrs. Kantharia submitted that the B.B.M. SMS record, forensic report in respect of one Laptop, I­Pad and two mobile phones belonging to the deceased is accused, are yet to be received by the Investigating Agency"

Ultimately, CBI was directed to undertake further investigation vide order dated 3.07.2014. 

While I'm definitely not saying that your case needs such a drastic approach as to seek a CBI investigation, a Writ Petition may not be out of place. What I wish to emphasize is, make sure that if the text messages are of assistance to your allegations, bring them on record.

498A deals with four types of cruelty:

(i)                   Any conduct that is likely to drive a woman to suicide,

(ii)                  Any conduct which is likely to cause grave injury to the life, limb or health of the woman,

(iii)                 Harassment with the purpose of forcing the woman or her relatives to give some property, or

(iv)                 Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property.

Do you think, here in the case, mobile messages meet any of the criteria of Cruelty & Harassment?

Apart from that, I also clearly mentioned, that "Using only the phone message as an evidence will not work."

Let me know the reason for disagree.

mahesh   22 January 2017

According to information technology act electronic messages are valid evidence but would it amount to cruelty or not would depend on revelant facts to be proved
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