Anonymous
Asked July 12, 2016

Harassment and Divorce

  • 1 Answer
  • 579 Views

Hi, I got married last year and my husband lives in australia. i lived with my husband in australia alone for just 56 days and got to know about his habits and other interests. we had major fights in those days so i came back to my parents for a couple of days with my return ticket and every thing. but apparently after 6 days of my arrival my husband told that he wants divorce and blocked all ways to communicate with him since then he has given an authority letter to his father and he is appearing and signing every where as his representative. First we filed a case in women cell and for almost 8 months i attended the counselling sessions but firstly even my father in law didnt come and then for 5 sessions he visited the women cell and demanded for divorce on behalf of my husband. I have filed cases of maintenance, harassment and Dowry and while the counselling sessions were on and after the mediation failed i received a summon of court to appear for DIVORCE CASE filed by my husband in his home town. Its been almost an year he has not appeared before any of the respective courts and moreover he has now even changed his job from his previous company so i have no idea where he works. We got few threatening calls from my husband hometown and filed a complaint in the near by police station and also informed my counselor officer the same day. my father in law also threatened me in the mediation session to withdraw the case. We filed a transfer petition by paying Rs 55000 to our lawyer in supreme court but on the first hearing only the case got denied. i am very much depressed and dont know where to go. Few facts:- My husband had made some audio recording of me fighting with him and on that basis he/my father in law has filed the divorce case. He has submitted the whatsapp chat between us as the proof. Is it actually valid in court? He/father in law has taken out some phone call records (the timings of call records) of my present phone number establishing the ground facts that i was involved with someone before and after marriage as i was in touch with that person by talking over phone. He has some audio and whatsapp chat proof of me drinking wine with him once on our first night. Is this valid in court.. can anyone file a divorce case on such grounds? He is having a physical relation with some girl in australia who used to work with him which he himself admitted to me after getting caught but i never made any audio recording of that so i dont have any proof about it. He has purchased himself a big house there along with a new luxurious car where as i am here running to district courts and police stations and fighting for my dignity while he is enjoying his life in abroad. Please guide me of how to bring him here and are these proofs enough to prove that i am guilty when it was exactly the opposite and moreover they are constantly threatening me and my family to step back or else they will do whatever it takes to spoil my life and image completely. What should i do? I want to mark mails to australian embassy about it and the same to his local police in australia. will this help me in finding his whereabouts? and is it possible for him to file a case and give authority to his father to fight as his representative while he enjoys in australia? Please help.

Answer 1

The position of electronic documents in the form of SMS, MMS and E-mail in India is covered by the law and the interpretation provided in various cases. It was held by the Delhi High Court that electronic records are admissible as evidence. If someone challenges the accuracy of a computer evidence or electronic record on the grounds of misuse of system or operating failure or interpolation, then the person challenging it must prove the same beyond reasonable doubt.[1]

Thus, any evidence produced by your husband or your father-in-law, in the form of phone records or whatsapp texts, will be admissible in Court. However, if you doubt the authenticity of such records, the IT Act, 2000 has a provision wherein a committee of experts can be constituted to look into the electronic evidenced produced by your father-in-law. Section 79A of the IT Amendment Act 2008 empowers the Central Government to appoint any department, body or agency as the examiner of an electronic evidence for providing expert opinion on electronic form of evidence before any court or authority. ‘Electronic form of evidence’ here means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital, audio, digital video, cell phones, digital fax machines.

 

Your husband can certainly file a divorce case on the ground that he believes you are cheating on him. Under the Hindu Marriage Act, 1955 a husband can file a divorce case against his wife on the ground of mental cruelty.[2] Here, the mental cruelty can constitute any behaviour of one spouse which creates an apprehension in the mind of the other about his/her mental welfare.[3] However, if his evidence against you is not beyond reasonable doubt, you can claim compensation for mental harassment too.[4]

Nevertheless, since the ground of divorce by your husband is not the one which makes a marriage irretrievably breakable[5], the Court will, in all probability, pass a decree of restitution of conjugal rights/judicial separation.

 

With regard to your husband’s personal absence from this scenario, if you wish to find out his whereabouts through Australian embassy, you are advised to do that through a legal order. However, if your husband has given your father-in-law to represent him in all the legal proceedings and speak for him in the Court, there is very little you can do to ensure his presence in person unless the Court thinks it is indispensable.

 

 

[1] State of Delhi v. Mohd. Afzal & Others,  107 (2003) DLT 385

[2] Section 13 Explanation (ii)

[3] Maya Devi v. Jagadish Prasad, AIR 2007 SC 1426

[4] Section 13 of the HMA

[5] Section 13(1) of the HMA

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