Evidence obtained in violation of privacy rights is inadmissible, emphasizing the need for proper certification for electronic records.

ORDER

“B”'s marriage with “R' was solemnized on 07.02.2003. Two girl children were born through the wedlock. Alleging cruelty, adultery and desertion on the part of “R” (wife), “B” filed HMOP No.61 of 2019 on the file of Sub-Court, Paramakudi for dissolution of the marriage. The husband examined himself as PW.1 and marked Ex.P4 Call Data Record of the wife. Seeking rejection of the said document, the wife filed I.A No.1 of 2023. It was dismissed as premature by the court below vide order dated 14.03.2024. Challenging the same, this civil revision petition has been filed.

2.The learned counsel appearing for the petitioner reiterated all the contentions set out in the memorandum of grounds of civil revision petition and called upon this Court to set aside the impugned order and grant relief as prayed for.

3.The learned counsel appearing for the respondent/husband submitted that the impugned order is well reasoned and that it does not warrant interference.

4.I carefully considered the rival contentions and went through the materials on record. This case raises several issues of fundamental importance. I, therefore, requested Shri Srinath Sridevan, Senior Advocate, to assist the court as amicus curiae. The learned amicus discharged his role admirably and I place on record my appreciation for his assistance.

5.The matrimonial petition was filed in 2019 itself. Therefore, the Indian Evidence Act, 1872 would apply and not the Bharatiya Sakshaya Adhiniyam, 2023 which came into force on 01.07.2024. However, the learned amicus requested the court to look at the issue from the perspective of the new Act also and issue certain directions. There is a compelling reason as to why such a request was made. Section 63 of BSA, 2023 deals with the admissibility of electronic records. Sub-section (4) of the said provision is as follows :

“(4)In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—

(a) .....

(b) ...

(c)....

and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.”

The effect of the above provision is that filing of the certificate is mandatory along with the electronic record. The certificate is to be signed by the person in charge of the computer system and an expert. The sub-section itself refers to a schedule annexed to the Act which is in two parts, Part A and Part B. Part A is to be filled by the party and Part B is to be filled by the expert. Section 39 of the BSA, 2023 deals with opinions of experts. Section 39(2) deals with experts in relation to electronic evidence. Section 39(2) is as follows :

“(2) When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 , is a relevant fact.

Explanation.—For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert .”

The above provision takes us to Section 79A of the Information Technology Act, 2000 . It reads as follows :

“79A.Central Government to notify Examiner of Electronic Evidence.–The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government