IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.90-M of 2010(O&M) Date of decision:10.02.2011 Mrs. Nidhi Kakkar ....Appellant versus Munish Kakkar ....Respondent CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Ms. Nidhi Kakkar, appellant in person. Mr. Kanwaljit Singh, Senior Advocate, with Ms. Harpreet Kaur, Advocate, for the respondent. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. I. Grounds for divorce by husband that found acceptance 1. The appeal is at the instance of the wife against the decree of divorce granted in favour of the husband. The husband had at least 6 reasons to give for justifying his plea for dissolution of marriage: (i) the wife, who was a Canadian citizen had immediate close relatives living abroad, and had after the marriage left for Canada without the consent of the husband; (ii) she had been taking anti-depression drugs and was suffering from some ailments which were not disclosed to him; (iii) she had forced a separate residence from his parents after her return to India and caused mental cruelty to him; (iv) she had caused physical assaults FAO No.90-M of 2010 (O&M) - 2 - on him on 15.04.2003 that required medical treatment with the doctor; (v) she had indulged in character assassination of the husband by falsely insinuating that he had extra marital relationship and was particularly proximate to a colleague in office by name Rajni Mahajan; and (vi) she had taken away the articles from the house suggesting that she was no longer interested in leaving with the company of the husband and exhibiting the intention to desert the husband. 2. There were denials to each one of the aspects by the wife and she had a justification or explanation to the grounds urged by the husband. The trial Court, however, rejected the evidence and found the grounds urged by the husband to be fully established and granted a divorce in the manner sought for. II. The predominant grounds for immediate consideration 3. The appellant, who had the benefit of counsel presented her case in person with vehemence that each one of the vital considerations wrought by the trial Court were deflected away from appropriate legal reasoning and betrayed a lopsided approach without sifting the evidence in the light of the details brought through documents produced at the trial by the wife. Of the allegations, the issue relating to the wife taking anti- depression drugs or that she had taken away the articles from the house or even the suggestion that she had left for Canada without the consent of the husband, even if they were taken as established would not prove any form of cruelty except that they might be taken up with other factors for inference of the general deteriorating relationship between parties. They may not be themselves sufficient to establish any element of FAO No.90-M of 2010 (O&M) - 3 - cruelty that could justify a dissolution of marriage. Many of the issues for adjudication could be considered in the context of communications brought through emails but the trial Court discarded them entirely on account of the fact that the husband objected to their admissibility. There could be no reluctance to admit evidence that is generated in electronic form in these heydays of advancement of information technology. The giant strides that are taking place in the field of science cannot be lost to the legal system to access through evidence brought in electronic form. The relevant provisions of law are, therefore, examined to provide a theoretical legal basis for admission of records. III. Admissibility of emails – The relevant legal provisions 4. As observed above several communications between parties have taken place through e-mails, when the wife was in Canada and the husband was in India. The text of communications has enormous bearing to test the respective conduct of parties. All the email communications have been marked without being exhibited as evidence since the author of the emails (in this case, the husband) objected through counsel for the exhibition of the records. It must be noticed that email is a generation of record in an electronic form. The relevant sections of Information Technology Act are reproduced here: 2. Definitions (r) “electronic form” with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device; FAO No.90-M of 2010 (O&M) - 4 - (t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; (v) “information” includes data, message, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche; (ze) “secure system” means computer hardware, software, and procedure that— (a) are reasonably secure from unauthorized access and misuse; (b) provide a reasonable level of reliability and correct operation; (c) are reasonably suited to performing the intended functions; and (d) adhere to generally accepted security procedures; 5. The Information Technology Act itself provides for legal recognition of such electronic records. The relevant provisions are: 4. Legal recognition of electronic records.—Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is— (a) rendered or made available in an electronic form; and FAO No.90-M of 2010 (O&M) - 5 - (b) accessible so as to be usable for a subsequent reference. 11. Attribution of electronic records.—An electronic record shall be attributed to the originator— (a) if it was sent by the originator himself; (b) by a person who had the authority to act on behalf of the originator in respect of that electronic record; or (c) by an information system programmed by or on behalf of the originator to operate automatically. 12. Acknowledgment of receipt.—(1) Where the originator has not stipulated that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by— (a) any communication by the addressee, automated or otherwise; or (b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received. (2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then unless acknowledgment has been so received, the electronic record shall be deemed to have been never sent by the originator. FAO No.90-M of 2010 (O&M) - 6 - (3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then, the originator may give notice to the addressee stating that no acknowledgment has been received by him and specifying a reasonable time by which the acknowledgment must be received by him and if no acknowledgment is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it has never been sent. 13. Time and place of despatch and receipt of electronic record.—(1) Save as otherwise agreed to between the originator and the addressee, the despatch of an electronic record occurs when it enters a computer resource outside the control of the originator. (2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:— (a) if the addressee has designated a computer resource for the purpose of receiving electronic records,— (i) receipt occurs at the time when the electronic record enters the designated computer resource; FAO No.90-M of 2010 (O&M) - 7 - or (ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee; (b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resources of the addressee. (3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business. (4) The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-section (3). (5) For the purposes of this section,— (a) if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business; (b) if the originator or the addressee does not FAO No.90-M of 2010 (O&M) - 8 - have a place of business, his usual place of residence shall be deemed to be the place of business; (c) “usual place of residence”, in relation to a body corporate, means the place where it is registered. 6. The authenticity of the documents is a different issue. It can be tested with reference to the provisions of the Evidence Act and could be matters for cross examination. If a person produces a text of information generated through computer, it shall be admissible in evidence, provided the proof is tendered in the manner brought through the Evidence Act. To illustrate, the first requisite is the relevance of the text to the facts to be established at the trial. If a basis is made by the person, who tenders the document, he or she must then speak about the fact of its receipt first hand at a computer which was receiving data in the usual course of its working. The authenticity will have disclosed, in the context of emails, by recipient’s email id and the sender’s id and the relevant information available in the text of mails containing those details. The correctness and the exact reproduction in print out version could be still issues in the cross-examination and the Court will then consider whether the text could have been altered or morphed. There are dangers of fabrication but that shall be no ground for rejection of the whole record only because, it was possible fabricate false evidence. The relevant provisions of the Evidence Act are: 22-A. When oral admission as to contents of electronic FAO No.90-M of 2010 (O&M) - 9 - records are relevant.—Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question. 65-A. Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of Section 65-B. 65-B. Admissibility of electronic records.—(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely— (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities FAO No.90-M of 2010 (O&M) - 10 - regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether— (a) by a combination of computers operating over that period; or (b) by different computers operating in succession FAO No.90-M of 2010 (O&M) - 11 - over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (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 FAO No.90-M of 2010 (O&M) - 12 - responsible official position in 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 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. (5) For the purposes of this section,— (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference FAO No.90-M of 2010 (O&M) - 13 - to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.] 7. The Delhi High Court in the case in Dharambir v Central Bureau of Investigation 148 (2008) DLT 289:ILR (2008) Del 842 was answering the issue, inter alia of whether the hard discs on which the intercepted telephone conversations between the parties had been recorded, were ‘documents’ within the meaning of Section 173 (5) (a) read with Section 207 (v) CrPC. Referring to the relevant provisions of the Indian Evidence Act and the Information Technology Act, which are extracted above, the Court said that “A collective reading of the above definitions shows that an electronic record is not confined to data alone but it also means the record or data generated received or sent in an electronic form. … The word ‘data’ therefore includes not only the active memory of the computer, in this case the hard disc, but even the subcutaneous memory…. While there can be no doubt that a hard disc is an electronic device used for storing information, once a blank hard disc is written upon it (and) subject to a change and to that extent it becomes an electronic record. Even if the hard disc is restored to its original position of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it at one time and subsequently removed. By use of software programmes it is possible to find out the precise time when such changes occurred in the hard disc. To that extent even a blank hard disc which has once been used in any manner, for any FAO No.90-M of 2010 (O&M) -14- purpose will contain some information and will therefore be an electronic record. This is of course peculiar to electronic devices like hard discs.” 8. The same judgment also records “There are two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software programme. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc (italics supplied). Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned HD or a mirror image…Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the Evidence Act, read with Sections 2 (o) and (t) IT Act, there can be no doubt that an electronic record is a document.” 9. In this case, when the party was present in court, I called him to testify to the emails said to have been sent by him. He would admit to have an email id, his access to computers, his wife’s email id and his penchant for communication through emails. In the course of a brief examination made on oath, there was but a halting admission in these words, “The writings read like that I have written but I cannot however, say, whether the writing is made by me. I feel I have written FAO No.90-M of 2010 (O&M) -15 - this letter.” I am of the view, the witness was not speaking the truth when he was saying that he cannot say whether the whole writing was by him. In fact, the wife, while giving evidence in Chief through affidavit as well as in the written statement reproduced the relevant materials from the emails sent by the husband. The husband has not controverted them that he did not send those emails or suggest to the witness that text referred therein were not written by him. The text of information has a ring of personal touch that only spouses could exchange and they have immediate relevance to the facts to be established. A printed version produced by the wife that contained text of what is relevant for the case is admissible. I have therefore read the whole text of emails produced in court as admissible evidence. If, in a given case, the party denies having sent the email, the procedure must be to produce a certificate in the manner provided in sub section (4) of Section 65B of the Evidence Act reproduced above. That would have meant securing a certificate from the server of what the text contained to authenticate the text of transmission. There could be a danger of some person generating a fake mail by breaking into the email box of another and dispatch a mail to himself with incriminatory content to harm the other. If there is a doubt on such lines, it shall be possible to secure forensic details through the cyber crime branch of the State Police to find out the source of the particular computer, the place of dispatch, etc, with some effort. Fabrication of mail content is possible in conventional mails also, but it is a matter of evidence that could be subjected to cross examination to be tested for authenticity than a reluctance to admit them in evidence. FAO No.90-M of 2010 (O&M) - 16 - IV. Tenor of emails belie case of departure of wife to Canada without husband’s consent 10. For the sake of record, I may point to the communication through email that will establish that there is no truth as regards the first visit of the wife to Canada, he had not informed before leaving for Canada. It could never have been true that the wife had left without informing to him and that he was angry. Letters in the e-mails show how much he loved her and was missing her. There is no sense of anger which would have been there if she had left without his knowledge or consent. In the e-mail letter dated 08.07.2001, he had stated as follows:- “.....yaar aaj mainai yai gana suna which make me very emotional because I love you a lot, tum sahi kehti thee ki meri importance mere jane ke baad samjhoge, yaar bahut der mat lagana. Abb gana suno.....” In the e-mail letter dated 09.08.2001, he had stated as follows:- “ Hi nidhi, I am sorry, yaar tum ittni door bethi ho ki jab tumhari yaad aati hai to kabhi-2 chir much jati hai, issi main agar kuch galat bol jaun to pls forgive me as I am your life partner & also part of you. We are made for each other. Yaar I love you a lot & I need you nidhi. I miss you nidhi. Yaar main tumhe bahut prar karta huin, pls mujhe pyar dena. I can't live without you.” I will not, therefore, take them very seriously except in the context of proof of other grounds urged by the husband which, if established, they will be taken as aggravating factors. FAO No.90-M of 2010 (O&M) - 17 - 11. It cannot be denied that soon after the marriage, the wife had been keen to relocate the husband in Canada for their mutual benefit. It did not however take effect and the forays of foreign visits by the husband did not secure to him the kind of comfort which he had in his employment in India, and he was thereafter interested in coming back to India. The reluctance of the wife to come back and start living in India had surely come with its own package of problems, particularly in her inability to adjust to the environment of the house with the parents of the husband living in the same house. This is a recurrent theme for the modern day couples