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Koushik Ghosh   07 June 2017

Query about the evidences collected for a divorce u/s.13 hma

Petitioner/Husband have applied for divorce U/s. 13 of the Hindu Marriage Act, 1955. After he discovers his wife is cheating and using various way to provoke him for a tiff so that she can file a DV suit but failed. Petitioner/husband remain speech less  and clam; leaves his co-owned flat leaving behind his daughter as he had no other choices apart from left at that time, moreover  being a father, he cannot make her daughter homeless. Now the allegations that are mentioned by the petitioner/Husband are all related to the mental agony and cruel behavior exhibited by her wife more than one year after she has got into the mentioned illicit relationship. During hearing of the suit reconciliation failed as no one of them are willing to stay together. Now in this context wife has also filled pendent lite  U/s. 24 of the Hindu Marriage Act, 1955. And Petitioner/Husband have applied for custody of child U/s. 26 of the Hindu Marriage Act, 1955. All three suits are in hearing stage.

Now the main query is - Petitioner/husband before leaving the residence, could collect few evidences of his wife’s adultery, from house’s common computer, which was being used by wife and husband both and some from wife’s cell phone. They are mentioned as follows:

  1. Digital copy of email exchanges in between Wife and other person involved with her.
  2. Photocopies of phone bills that indicating thousands of calls to the same person during odd hours, bills are received at residence address.
  3. Photocopies of gift items that wife has received from that person, kept at the residence.
  4. Copies of SMS and filthy chat messages collected from Wife’s phone exchanged between her and that person. Collected from wife’s phone.

Now Court only relies on the evidences that are collected via RIT or by Police investigation, in this case the Recording of Telephonic/Bills/Chats Conversations where none of the parties consents to its being recorded.

Therefore producing them is illegal according to U/s 63, 65, and 65B of the Indian Evidence Act, 1872 (“Evidence Act”). And the respondent/wife can also file a counter suit against husband saying it was been collected by hacking computer/phone without her consents although in fact she has been caught in the act, more than once. No one in the world can give consents to collect evidence of such behavior, knowing the fact, it can go against her in future.

Now please suggest me what kind of procedure Petitioner/husband should take to prove the adultery and promiscuous nature of his wife, which is not very important for divorce but absolutely important for the suit that he has filled for custody of child U/s. 26 of the Hindu Marriage Act, 1955.

Please suggest if the copy of visitor log book of same housing apartment can also be produced which reflects the same person regularly visit the residences of Petitioner’s wife stayes for the entire day, where she lives with her daughter,  will court consider the such visitor log book entry as evidence of her living in adultery. [Point to mentioned, the said residence or flat is co-owned by Petitioner/Husband and respondent wife]. Please suggest.

Thanks in advance.


 2 Replies

Raveena Kataria (Advocate )     21 June 2017

In R.M. Malkani v State of Maharashtra, a 1973 case that went up till the Supreme Court, the prosecution of the appellant was also solely based on a tape recording even though it was contended by him that it was obtained unlawfully. 

In Magraj Patodia v R.K. Birla, the court held even that if a document has been obtained illegally, it's admissible, provided it's proven that it's relevant and genuine. 

In majority cases today, the petition for divorce (on grounds of adultery) based on such evidence is granted by the court.

Moreover, the Madras High Court recently ruled that a woman divorced on grounds of adulterous conduct cannot claim maintenance. The court shall then of course decide based on the circumstances and claims (if proven to their satisfaction) to award the child's custody to the father if it seems to be in the child's best interest.

1 Like

Koushik Ghosh   21 June 2017

Thank you very much for your reply, and helpful direction.



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