The Telegraph
Wednesday , February 20 , 2013
Since 1st March, 1999
CIMA Gallary


You could be a victim of domestic violence or adultery, or be at the mercy of a psychotic spouse. But unless you can prove this, charges against the spouse remain null and void in a court of law. The main factor in all of this is proof that can be accepted as admissible evidence in court. So, before you go randomly collecting evidence it is best to discuss this with your lawyer and understand how evidence works.

Evidence is the legal term used to describe the truth in a matter. When either party wishes to prove or disprove certain facts, they rely on evidence to do so. Evidence is anything material to prove your point in court, and includes emails, doctors’ bills, photographs, written notes or letters, and so on. You can gather evidence by diligently locating the information you need from your family or financial records or by hiring a private detective to gather photographic/videotaped evidence.

To begin with, there are two types of evidence considered by the family/matrimonial courts as per the Indian Evidence Act, 1872:

1. Primary or eyewitness evidence

2. Secondary or corroborating evidence that supports primary evidence

All evidence is put through tests for validation and authentication before it can be presented in court. So, you need to know what works and what doesn’t.

How to Catch Your Spouse in the Act

If you’re a victim of physical violence and abuse, how do you collect evidence? This is a very difficult situation to be in because you are your own evidence. In cases of violence try and take photographs of your injuries with date and time if possible. Get your medical certificates and prescriptions in place, keep all of your medical documentation carefully and get your doctor and other medical practitioners to be your witnesses. You can also call on witnesses like your neighbours, etc.

If you suspect your spouse of having an affair, how should you go about collecting evidence? Phone records, emails, messages and chats can definitely work as evidence. But more corroborative evidence is required to strengthen the case. For example, an email or a message by itself is not always conclusive proof of adultery, although it may be an indication that there is something more to the relationship than mere friendship. To substantiate your contention of adultery you may be required to prove it by way of other corroborative evidence. That could be in the form of getting photographic or videotaped evidence of your spouse and his/her paramour together. Other forms of evidence include recording conversations between the two or taping the conversation of your spouse and yourself while your spouse is admitting to you about having an affair.

The Supreme Court now recognises the importance of technological evidence like recorded conversations or videos. But with that has also come the awareness that a petitioner could use software to morph a photograph or distort the voice on tape. So, it’s always better to have more than one piece of evidence. All of this evidence will have to pass through certain tests to prove its authenticity as per the process of law before it is considered as corroborative evidence.

CCTV: An Evidence Gamechanger

Closed-circuit television (CCTV) tapes are a new and supportive piece of evidence. CCTV is installed in many homes and offices nowadays and can be used to prove or disprove certain points regarding a particular statement, accusation or contention. The time and date stamp on the CCTV recordings also lend a sense of credibility to the issue, while they are put through tests to ascertain their authenticity. CCTV evidence can perhaps prove beyond reasonable doubt your contention as well as support your accusation, as the case may be.

Hiring a Private Investigator

The role of a detective or private investigator, or PI, is increasingly becoming very important. Earlier, PIs were used only by companies or large corporate houses as a part of their due diligence operations but now domestic disputes are a regular fare for them. You can hire a PI to gather evidence against your spouse. But keep a few things in mind:

1. Hire a recommended PI; there are way too many hacks around.

2. Your PI must provide you with photographic and/or videotaped proof and a report if he is engaged for shadowing your spouse.

3. Ensure that your PI will appear as an eyewitness on your behalf during court proceedings to authenticate the evidence and prove that it has not been morphed or tampered with.

Emails, Messages and Social Networking

It is interesting to note that the cyber crime cell of the Indian police is of late playing a major role in cases at the courts. Spouses often hack each other’s email IDs to find evidence of infidelity. Some people even send abusive or threatening emails to their spouses and then deactivate the account and deny sending such emails, which in itself is mental cruelty.

But emails are more often than not used as evidence. This is done when you provide the header and footer at the time of printing the email. Then at the time of the cross-examination of your spouse, your lawyer will ask him/her the two most pertinent questions to admit the document as evidence: whether the email ID printed on the document belongs to him/her and whether he/she recognised the content of the email.

If your spouse denies that he/she has any such email ID or tries to delete the account, an application can be made to the court to refer the emails to the cyber crime cell of the police and direct the cell to investigate the matter. In due course of time, the investigating officer will be brought to court and examined by your lawyer. This is then recorded as evidence. Here the officer will go on to tell the court exactly what steps he took to reach the conclusion that the particular email ID does belong to your spouse, and where the emails originated from.

In civil cases, this is known as preponderance of probability — circumstantial evidence which a reasonable, prudent man considers to be proof of adultery, desertion, hacking of email or lying while under oath during cross-examination.