R V B 568812

CRP(MD)No.
2362 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.10.2024
Pronounced on : 30.10.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
CRP(MD)No.2362 of 2024
and
CMP(MD)No.13409 of 2024
R..... ... Petitioner/Petitioner/Respondent
vs.
1.B..... ...Respondent/Respondent/Petitioner
2.The Secretary to Government,

Ministry of Electronics and
Information Technology
(MEITY), Government of India,
New Delhi. ... 2nd respondent
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the order dated 14.03.2024 made in I.A No.1 of 2023 in
HMOP No.61 of 2019 on the file of the Subordinate Court, Paramakudi.
For Petitioner : Mr.D.Senthil

For Respondents : Mr.J.Senthil Kumaraiah for R1
Mr.K.Govindarajan,
Deputy Solicitor General of India for R2
Mr.Srinath Sridevan, Senior Counsel

Amicus Curiae
https://www.mhc.tn.gov.in/judis
1/18
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
2/18
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.”
3/18
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 as an Examiner of Electronic Evidence.
Explanation.–For the purposes of this section, -electronic
form evidence? means any information of probative value that is either
stored or transmitted in electronic form and includes computer
4/18
evidence, digital audio, digital video, cell phones, digital fax

machines.”
In the light of the above three provisions, namely, Section 63 and Section 39
of BSA, 2023 and Section 79A of the Information Technology Act, 2000, one
can conclude that a person desirous of relying on any electronic record as a
document in evidence must submit a certificate at the time of filing the
electronic record. The certificate must be in two parts, Part A and Part B.
Part B must be filled up by the expert notified under Section 79A of the
Information Technology Act, 2000.
6.It is admitted by the Central Government that only a handful of
entities have been notified till date as experts under Section 79A of the Act. It
is surprising to note that no expert has been notified in the State of Tamil
Nadu. It is beyond dispute that Tamil Nadu has good I.T infrastructure and
skilled manpower. Since BSA has already come into force, very soon there
will be need for certificates under Section 63(4) of BSA for securing admission
of electronic records. If experts are not available in Tamil Nadu, that would
result in denial of the right of access to justice which is a fundamental right. I,
therefore, direct the second respondent to expeditiously notify sufficient
number of persons/bodies/entities as experts in the State of Tamil Nadu.
The number to be so notified will have be commensurate with the possible
demand. It would be advisable to have such experts in each district in Tamil
5/18
Nadu. This exercise of assessment and notification shall be carried out within
a period of three months from the date of receipt of copy of this order. Since
the position as on date is that meeting the statutory requirement is not
possible of compliance, the learned amicus wanted me to read down the
Section so that any person who is specially skilled in computer science can be
recognised as an expert for the purpose of filling up Part B of the certificate. I
do not want to travel that far as that would amount to re-writing Section 79A of
the I.T Act. But such an occasion may arise if the notification directed to be
issued under Section 79A of the I.T Act, 2000 is not issued by the Central
Government.
7.In the case on hand, the applicable provision is Section 65B(4) of
the Indian Evidence Act, 1872. It reads as follows :
“(4) In any proceedings where it is desired to give a

statement in evidence by virtue of this section, a certificate doing
any of the following things, that is to say, ––
(a) identifying the electronic record containing the
statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that electronic record as may be appropriate for the
purpose of showing that the electronic record was produced by a
computer;
(c) dealing with any of the matters to which the
conditions mentioned in sub-section (2) relate, and purporting to
be signed by a person occupying a responsible official position in
6/18
relation to the operation of the relevant device or the management

of the relevant activities (whichever is appropriate) shall be
evidence of any matter stated in the certificate; and for the
purposes of this subsection it shall be sufficient for a matter to be
stated to the best of the knowledge and belief of the person stating
it.”
The above provision was considered in Anvar P.V vs. P.K.Basheer (2014)
10 SCC 473. It was held therein as follows :
“15.Under Section 65-B(4) of the Evidence Act, if it is desired to

give a statement in any proceedings pertaining to an electronic
record, it is permissible provided the following conditions are
satisfied:
(a) There must be a certificate which identifies the electronic record
containing the statement;
(b) The certificate must describe the manner in which the electronic
record was produced;
(c) The certificate must furnish the particulars of the device
involved in the production of that record;
(d) The certificate must deal with the applicable conditions
mentioned under Section 65-B(2) of the Evidence Act; and
(e)The certificate must be signed by a person occupying a
responsible official position in relation to the operation of the
relevant device.”
The husband (respondent herein) produced the call history as Ex.P4. The
marking was done subject to objection. In Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal and ors (2020) 7 SCC 1, while holding that
furnishing of certificate under Section 65B(4) was mandatory, the Hon'ble

7/18
Supreme Court clarified that Section 65B does not speak of the stage at which
such certificate must be furnished to the Court. In Anvar P.V, it was observed
that such certificate must accompany the electronic record when the same is
produced in evidence. The Hon'ble Supreme Court in Arjun Panditrao
Khotkar clarified that this would be so in cases where such certificate could
be procured by the person seeking to rely upon an electronic record. In cases
where a defective certificate is given, or, in cases where such certificate has
been demanded and is not given by the person concerned, the judge
conducting the trial must summon the person/persons referred to in Section
65B(4) of the Evidence Act and require that such certificate be given by such
person/persons. The trial judge ought to do so when the electronic record is
produced in evidence before him without the requisite certificate. The Hon'ble
Supreme Court made a distinction between the procedure to be followed in
civil cases and criminal cases. It was further held that so long as the hearing
in trial is not yet over, the requisite certificate can be directed to be produced
at any stage so that information contained in electronic record form can be
admitted and relied upon in evidence. It was authoritatively laid down that
certificate required under Section 65B(4) is a condition precedent to the
admissibility of evidence by way of electronic record.
8.Coming to the case on hand, the certificate enclosed by the
husband reads that the electronic statement was taken from Jio official
8/18
website and that the website is in order without any malfunction. One can
take judicial notice of the fact that call history can be obtained by reaching out
to the website of the concerned telecom service provider from the mobile
phone. The user of the device would get OTP. After authentication, the
information sought for will be provided which can be downloaded. A cursory
perusal of Ex.P4 would show that the mobile phone belonged to the wife and
the husband had access to the same. When the mobile phone with the sim
card was in the custody of the husband, he had reached out to the telecom
service provider (Jio) and obtained the call data. The certificate filed by the
husband is no certificate at all. It is not a defective certificate. It is not the
case of the husband that he wrote to the service provider and there was no
response. The call history was downloaded from Jio website. Therefore, only
a person occupying a responsible official position in Jio could have issued the
certificate. The husband/respondent herein could not have issued a self
serving certificate. Therefore, the case on hand will fall outside the caveat laid
down in Arjun Panditrao Khotkar by the Hon'ble Supreme Court. Ex.P4
ought to have been accompanied by a certificate as contemplated in Section
65B(4) of the Indian Evidence Act, 1872. The court below could not have
deferred taking a decision in the matter.
9.This is primarily because there has been a clear invasion of the
privacy right of the wife. It is obvious that the husband had stealthily obtained
9/18
the information pertaining to the call history of his wife. He was not the owner
of the mobile device or the registered user of the sim card. He had
clandestine custody of the same for probably a brief while. There has been a
clear breach of the privacy of the wife. In Justice K.Puttaswamy (Retd) v.
UOI (AIR 2017 SC 4161), it was held that privacy is a fundamental right. Can
evidence procured in violation of this right be admissible in evidence?. This
question does not admit of an easy answer. The learned amicus has
tabulated the dichotomy of judicial opinion :
Admissible Inadmissible
Kethana Lokes v. Rahul Bettakotte Asha Latha v. Durgesh
2024 Karnataka HC 21752 2023 SCC OnLine Chh 3959
Deepti Kapur v. Kunal Julka Rayala Bhuvanewari v.
AIR 2020 Del 156 Naggaphanender AIR 2008 AP 98
Preeti v. Kunal Neha v. Vibhor Garg (2021)
AIR 2016 Raj 153 (Punjab & Haryana HC)
Sachin Arora v. Manju Sankarram v. Kalaiselvi
2023 DHC 3197
CMSA(MD)No.54 of 2021 (Madurai
Bench of the Madras High Court).
Neha v. Vibhor Garg has been challenged before the Hon'ble Supreme Court
in SLP (C) No.21195 of 2021. Vide order dated 28.04.2022, the proceedings
before the Family Court have been stayed. The order of the High Court had
not been stayed.
10.The following observations and ratio laid down by the Court of
Appeal in Imerman v. Technquiz (2010 EWCA Civ 908) are relevant :
10/18
“it was a breach of confidence for a person intentionally to

obtain another person’s information secretly and without authorisation,
knowing that he reasonably expected it to be private, and, without that
other persons authority, ...... that the husband had an expectation of
privacy at common law and in accordance with article 8 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms in respect of the majority of documents stored on the server
which had been accessed without his authority at a stage in the divorce
proceedings ....
Why should one spouse have no right of confidentiality

enforceable against the other in relation to their separate lives and
personalities?...
Each spouse is entitled to a separate life, distinct from the
shared matrimonial life.
Legal protection applies to protect the confidence itself, not
merely to prevent the dissemination of information. It does not need to
be shown that the information will be misused; merely that it has been
obtained in breach of confidence would be sufficient.”
In Katz v. United States (389 U.S 347 (1967), Justice Harlan propounded the
reasonable expectation of privacy test to determine whether an action by the
government has violated an individual's reasonable expectation of privacy. It
was a two part test ; the individual has exhibited an actual (subjective)
expectation of privacy and the expectation is one that society is prepared to
recognise as reasonable. If both requirements are met and the government
has taken an action which violates this 'expectation', then the government's
11/18
action has violated the individual's right. In a research paper titled “My Diary
is Your Diary : The Right to Privacy in a Marriage” by Turkish author
Dr.Nadire Ozdemir, it was recommended that the Harlan test laid down in the
context of state surveillance should be extended to matrimonial relationships
also and that the spouses should be entitled to claim right of privacy against
each other.
11.Some of the courts which leaned in favour of admissibility of
evidence obtained in breach of privacy relied on Section 14 of the Family
Courts Act, 1984. The said provision is as follows :
“Application of Indian Evidence Act, 1872:—A

Family Court may receive as evidence any report, statement,
documents, information or matter that may, in its opinion, assist it
to deal effectually with a dispute, whether or not the same would
be otherwise relevant or admissible under the Indian Evidence Act,
1872 (1 of 1872).”
I am however not able to agree with such an approach. Though privacy like
any other fundamental right is not absolute, it was held in Justice
K.Puttaswamy case by Justice D.Y.Chandrachud for himself and three other
Hon'ble Judges that any curtailment or deprivation of the privacy right would
have to take place under a regime of law and that the procedure must be fair,
just and reasonable and subject to constitutional safeguards. The expression
“regime of law” requires some elaboration. Taking inspiration from the title of
12/18
the book “Legislating Privacy” by Priscilla M Regan, I hold that “regime of
law” envisages a special and comprehensive legislation dealing with the
subject of privacy. Such a parliamentary legislation would also deal with the
question relating to admissibility of evidence procured in breach of one's
privacy. Exceptions may be created. National security and supreme public
interest could be overriding considerations. In the absence of such a
comprehensive legislation, one has to conclude that there is no “regime of
law” dealing with the subject of privacy as of now. The Family Courts Act,
1984 was enacted more than three decades prior to Justice Puttaswamy
judgment. The discretionary power conferred on the Family Court under
Section 14 of the Family Courts Act cannot be said to fall within the meaning
of the aforesaid expression “regime of law”. There is no legislative validation
of evidence obtained by violating the fundamental right to privacy. In this
background, it would not be proper for the courts to carve out exceptions on
their own.
12.The observations made by the High Court of Harare, Zimbabwe
in CRB 57 of 2016 (S. v Nsoro) dated 25.02.2016 are apposite though
rendered in a criminal case. The deceased husband refused to let the
accused wife read a text message which the husband had received on his
phone. Out of anger over the deceased’s refusal to divulge the message, the
wife had stabbed the husband causing his death. Justice Chitapi has the
following take on the right to privacy between spouses :
13/18
“...Section 57 (d) of the Constitution provides that

every person has the right to privacy of their
communications. There is no law which provides that
a husband or wife has a right to infringe on the
privacy of the other’s communications. The accused’s
insistence that the deceased should divulge a
communication made to him on his phone was in
itself an infringement upon the right of the deceased
to privacy of communication. The deceased was
lawfully entitled to refuse to divulge the message he
had received on his phone to the accused albeit the
accused being his wife....
It is the court’s view that society should learn to
respect privacy of communications. Many a time, the
cellphone has been cause of ‘matrimonial quarrels
and domestic disputes because couples do not respect
each others' right to communications made or
received. A cellphone is materially a gadget which is
intended to ease communications between persons. A
lot of cases come before the courts in which a spouse
will have invaded the private communications of
another by going through messages and other
communications on the other spouse’s phone. This
practice should be deprecated. It amounts to
investigating or eavesdropping on one another.
Usually, spouses who do this will be aiming to find
evidence of wrongful conduct by the other.
Eavesdropping on another’s cellphone is evidence of
lack of trust in that other person. Courts are flooded
14/18
with cases where couples or spouses seek to prove

wrongful conduct by the other using evidence in the
form of messages retrieved from another spouse’s
phone. Such evidence unless obtained with the
consent of the owner of the phone would have been
illegally obtained in contravention of the rights of
every person to the privacy of communication as
guaranteed by Section 57 of the constitution and
evidential rules relating to admissibility of illegally
obtained evidence should be applied....”
13.I came across an interesting article titled “Rethinking the ‘Fruits
of the poisonous tree’ doctrine: Should the ‘ends’ justify the
‘means’?” (2020 SCC OnLine Blog OpEd 76). The authors Bharat Chugh &
Taahaa Khan lament the consequentialist approach that ‘the tree may be
poisonous but the fruit is fine’. To them, the concept of ends justifying the
means is deeply troubling and calls for judicial intervention. They also invoke
the “Unfair Operation Principle” applied by the UK Courts. This principle
prohibits admission of evidence if in the given case, its reception runs contrary
to the principles of basic fairness. The principle gives courts the discretion to
decide, on a case to case basis, as to what would operate fairly or unfairly
against the accused, and in appropriate cases, exclude such evidence. The
authors refer to 94th Report of the Law Commission of India which suggests
exclusion of evidence unlawfully obtained in criminal cases.
15/18
14.Trust forms the bedrock of matrimonial relationships. The
spouses must have implicit and total faith and confidence in each other.
Snooping on the other destroys the fabric of marital life. One cannot pry on the
other. Coming specifically to the position of women, it is beyond dispute that
they have their own autonomy. They are entitled to expect that their private
space is not invaded. The wife may maintain a diary. She may jot down her
thoughts and intimate feelings. She has every right to expect that her husband
will not read its contents except with her consent. What applies to diary will
apply to her mobile phone also. The Hon'ble Supreme Court is now
considering the question whether forcible sexual intercourse by the husband
against the wife's will would constitute marital rape. Obtaining of information
pertaining to the privacy of the wife without her knowledge and consent cannot
be viewed benignly. Only if it is authoritatively laid down that evidence
procured in breach of the privacy rights is not admissible, spouses will not
resort to surveillance of the other. One may wonder if marital misconduct
which has to be made out for obtaining relief may become impossible of
proving. It is not so. It can very well be established and proved by
appropriate means. Interrogatories can be served. Adverse inference can be
drawn. The charged spouse can be called upon to file affidavit with the
express warning that falsity will lead to prosecution for perjury. In exceptional
cases, the court can even take it upon itself to unearth the truth. Law cannot
proceed on the premise that marital misconduct is the norm. It cannot permit
16/18
or encourage snooping by one spouse on the other. Privacy as a
fundamental right includes spousal privacy also and evidence obtained
by invading this right is inadmissible.
15.The impugned order is set aside. This civil revision petition is
allowed. No costs. Connected miscellaneous petition is closed.
30.10.2024
Index : Yes / No
Internet : Yes/ No
skm
To:
1.The Subordinate Judge, Paramakudi.

2.The Secretary to Government,
Ministry of Electronics and
Information Technology
(MEITY),
Government of India,
New Delhi.
17/18
G.R.SWAMINATHAN, J.
skm
and
CMP(MD)No.13409 of 2024
30.10.2024
18/18

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CRP(MD)No.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

R..... ... Petitioner/Petitioner/Respondent

2.The Secretary to Government,

For Petitioner : Mr.D.Senthil

Mr.Srinath Sridevan, Senior Counsel

“B”'s marriage with “R' was solemnized on 07.02.2003. Two girl

Sub-Court, Paramakudi for dissolution of the marriage. The husband

dismissed as premature by the court below vide order dated 14.03.2024.

contentions set out in the memorandum of grounds of civil revision petition

3.The learned counsel appearing for the respondent/husband

materials on record. This case raises several issues of fundamental

importance. I, therefore, requested Shri Srinath Sridevan, Senior Advocate, to

admirably and I place on record my appreciation for his assistance.

5.The matrimonial petition was filed in 2019 itself. Therefore, the

admissibility of electronic records. Sub-section (4) of the said provision is as

“(4)In any proceeding where it is desired to give a

Part A is to be filled by the party and Part B is to be filled by the expert.

deals with experts in relation to electronic evidence. Section 39(2) is as

“(2) When in a proceeding, the court has to form an opinion on

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, digital audio, digital video, cell phones, digital fax

can conclude that a person desirous of relying on any electronic record as a

document in evidence must submit a certificate at the time of filing the

Information Technology Act, 2000.

6.It is admitted by the Central Government that only a handful of

result in denial of the right of access to justice which is a fundamental right. I,

therefore, direct the second respondent to expeditiously notify sufficient

number of persons/bodies/entities as experts in the State of Tamil Nadu.

The number to be so notified will have be commensurate with the possible

demand. It would be advisable to have such experts in each district in Tamil

the position as on date is that meeting the statutory requirement is not

possible of compliance, the learned amicus wanted me to read down the

recognised as an expert for the purpose of filling up Part B of the certificate. I

7.In the case on hand, the applicable provision is Section 65B(4) of

the Indian Evidence Act, 1872. It reads as follows :

“(4) In any proceedings where it is desired to give a

relation to the operation of the relevant device or the management

10 SCC 473. It was held therein as follows :

“15.Under Section 65-B(4) of the Evidence Act, if it is desired to

marking was done subject to objection. In Arjun Panditrao Khotkar v.

furnishing of certificate under Section 65B(4) was mandatory, the Hon'ble

produced in evidence. The Hon'ble Supreme Court in Arjun Panditrao

be procured by the person seeking to rely upon an electronic record. In cases

conducting the trial must summon the person/persons referred to in Section

person/persons. The trial judge ought to do so when the electronic record is

Supreme Court made a distinction between the procedure to be followed in

at any stage so that information contained in electronic record form can be

certificate required under Section 65B(4) is a condition precedent to the

admissibility of evidence by way of electronic record.

8.Coming to the case on hand, the certificate enclosed by the

information sought for will be provided which can be downloaded. A cursory

husband is no certificate at all. It is not a defective certificate. It is not the

certificate. The husband/respondent herein could not have issued a self

down in Arjun Panditrao Khotkar by the Hon'ble Supreme Court. Ex.P4

ought to have been accompanied by a certificate as contemplated in Section