• Mental cruelty evidence

My wife has buildup an affair with a guy recently and I have recently (Oct., 2015) come across and saved the contents of some online chat (older as Dec., 2014) between my wife and her ex-boyfriend accessing the password of my wife's gmail account secretly from my mobile tablet when she was on outing on a business tour. I have no other follow up evidence after Dec., 2014 of their such act. I think they are only in a phone/chat relation as the guy stays in another distant state so no chance of actual meeting could take place.  I have taken photographs of those past chats (screenshots) with my mobile. When confronted with my wife, she is telling it a complete sabotage with her mail account by some jealous colleague and she denied all allegations as false. She is also telling that as the password of her account has been leaked/hacked, and the security of her gmail account was in a compromised state at that time so she can’t certify any authenticity of those old chats. Now please let me know 
(1)	whether this (snapshots of the old chats) is admissible in the court of law after such a long gap as a valid evidence of mental cruelty. I have no recent direct evidences. Can I file domestic violence case on charge of mental cruelty?
(2)	May I approach to the court to get an order to reveal the mobile call data record of her mobile for last two years (SIM no. is in her name) for the Reliance Communications no. she is using? Is it easier to get through such a court order for CDR or any private detective can access it easily? How can I get a recorded conversation of her voice calls from the MSP for the past two years?
(3)	May I be charged of doing a cybercrime for accessing my wife's mail account by her password thereby opening from a different device (not her own device) without her knowledge/consent? Does it come under breach of privacy even if I am her husband? Can she sue against me?
Asked 1 year ago in Family Law from New Delhi, Delhi
Religion: Hindu
1) domestic violence case cannot be filed by you . DV Act has been  enacted to protect women from domestic violence

2) your wife has not indulged in adultery . she has merely had chat conversations with her ex boy friend 

3) chat messages are admissible in evidence 

4) telecom service providers dont maintain voice call record data of subscribers. 

5) your wife can complain to cyber cell for hacking her email account 
Ajay Sethi
Advocate, Mumbai
23375 Answers
1225 Consultations
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Dear Querist
My opinion on your queries are as under:

(1)	whether this (snapshots of the old chats) is admissible in the court of law after such a long gap as a valid evidence of mental cruelty. I have no recent direct evidences. Can I file domestic violence case on charge of mental cruelty?
Opinion: All digital evidence can be accepted by court as per section 65B of Indian Evidence Act, but you have to issue a certificate regarding the same as per compliance of section 65B of IEA. 
You can not file any domestic violence case against her because the domestic violence case can be filed by women only.

(2)	May I approach to the court to get an order to reveal the mobile call data record of her mobile for last two years (SIM no. is in her name) for the Reliance Communications no. she is using? Is it easier to get through such a court order for CDR or any private detective can access it easily? How can I get a recorded conversation of her voice calls from the MSP for the past two years?
Opinion: No, you can not file this type of case but if there is any case pending before the court then you may file an application u/s 91 of Cr.P.C. r/w section 106 of indian Evidence Act to produce that mails/chat.
there is no procedure for getting voice calls recording because the server of the service provider is not authorized to save the voice calls recording.

(3)	May I be charged of doing a cybercrime for accessing my wife's mail account by her password thereby opening from a different device (not her own device) without her knowledge/consent? Does it come under breach of privacy even if I am her husband? Can she sue against me?
Opinion: It may be but she will not be proved before the court that you don't know her email password because it is common that husband and wife know the password of the email of each other due to love and affections. 

Feel Free to Call for further assistance or meet me personally after take appointment and after deposit the consultation fee
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1) you can file for divorce on grounds of mental cruelty 

2) adultery is difficult to prove

3) your wife can complain to cyber cell for hacking her email account

4) you deny accounts were hacked and wife had disclosed her password to you and you accessed her account with her consent 

5) engage a detective agency to gather your wife call data records 
Ajay Sethi
Advocate, Mumbai
23375 Answers
1225 Consultations
5.0 on 5.0
1) mental cruelty can be based on divorce but not adultery. 
her boy friend can not be summon.

2)she can be but can not be proved.

3) use the word that husband and wife both have the password of the mails of each other due to love, affection and trust.

4) call data record can be summoned  by court from telecommunication service provider but it may not be possible that the service provider saved the same.

5) the court will not Direct the company without any court case.

Feel Free to Call 
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Hi, you can file a petition for divorce on the ground of mental cruelty and not on the ground of adultery. you can summon her boyfriend but it has no use to you and he will not tell the truth before the court and he can deny your allegations.

2. She can't sue you for breach of trust you may defend it by accidentally you have access  the her mail account.

3. You can get the call details and mobile chats of 6 months but it is very difficulty to get through legal channel you can heir detective agency and they will help to get the details of chat records.    
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
however these snapshots are admissible in evidence but they are not sufficient to prove it. there must be some corroborative evidence in its support. 
You can't claim divorce on the ground of adultery because there is no sexual intercourse between them so no offence is made out. 
 
you should settle this matter amicably because it might be possible that someone hacked her account but it may be easily proved. don't involve court kachahri and police authority. litigation should be last option. 
 
Shivendra Pratap Singh
Advocate, Lucknow
2786 Answers
41 Consultations
4.9 on 5.0
Dear 
how was the behavior of your wife towards you. Is she behave more lovingly ,give proper care ?Do you have any other issues in your married life with her , if so you take it as serious. Trust is an important thing is a married life. The deeds of your wife  (if your version is true) is not admissible one.Definitely it will made much worry on the life of  a good husband. 

Even though it is not a good admissible proof ,you will approach a good private detective agency  and check her future movements through face book ,whats app ,face book,messenger,yahoo chat,immo,skype.If she has an affiar she will contact her alleged boy friend again and you all collecting evidence for your divorce petition. 
The better suggestion is , After getting more evidence you should take a decision about Divorce . The present evidence she denied and explain the circumstances of denial. So when you approach the court try to show the mental cruelty this evidence does not help you. You will wait for more evidence and silently watch her deeds.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. Simple chat records of old flame can not be used as sufficient evidence to call off the marriage. You shall have to collect evidence of their being physical after staying married with you,

2. The Court will not accept your  prayer for directing the telephone service provider to provide her call details based on your submission. Simple call details will not be adequate for filing divorce suit,

3. If your wife lodges a police complaint against you for illegally hacking in to her email account, then you will be in serious trouble as per I.T. Act.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. It is very difficult to prove adultery or cruelty based on old chat records. It can back fire with the question about your accessing your wife's email account,

2. Yes, your wife can sue you as per Information Technology Act as mentioned in my earlier post,

3. For collecting evidence, you can not commit offence which you have done,

4. Calling some one is not an offence and CDR will prove nothing against your wife. Court also will not pass such order as proposed to be prayed by you,

5. Service provider will not pass on such personal records to any one including private detectives with out court order.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
(1)	whether this (snapshots of the old chats) is admissible in the court of law after such a long gap as a valid evidence of mental cruelty. I have no recent direct evidences. Can I file domestic violence case on charge of mental cruelty?
The evidences in your possession are not admissible in law   This is not sufficient to prove her adulterous way of life or to prov he extra marital relationship with some other guy even if you file a divorce case against her on this grounds.  Further domestic violence case is for women and not for men, the very name suggests it: The Protection of women from Domestic violence Act.


(2)	May I approach to the court to get an order to reveal the mobile call data record of her mobile for last two years (SIM no. is in her name) for the Reliance Communications no. she is using? Is it easier to get through such a court order for CDR or any private detective can access it easily? How can I get a recorded conversation of her voice calls from the MSP for the past two years?
Legally it is not possible to obtain them, you may contact private detective agencies who would be willing to help you on this. 



3)	May I be charged of doing a cybercrime for accessing my wife's mail account by her password thereby opening from a different device (not her own device) without her knowledge/consent? Does it come under breach of privacy even if I am her husband? Can she sue against me?
she has got rights to sue you for cyber crimes f hacking her mail, interfering into her privacy without her consent etc. 

.
T Kalaiselvan
Advocate, Vellore
14158 Answers
127 Consultations
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(1) I am sorry to say that the chats were some erotic/love affair kind of. I have no recent such evidence of their act. Can I file divorce on mental cruelty/adultery? Can her ex-boyfriend be summoned to court to testify?

If you have some clinching evidences to prove her adulterous life then you may implead that person (her paramour)  also as a respondent in the divorce case filed against her on the grounds of adultery otherwise you ca file divorce on mental cruelty alone in which you can include such events in the pleadings. 



(2) Can my wife sue against me for breach of her privacy even if I am her husband on the ground of accessing her mail account without knowledge? 
Yes she can very well go ahead, she has got rights for her privacy and can take anyone into task is found to have invaded into her privacy. 




(3) I am confused that if it is illegal as it is a breach of her privacy to access her mail chats using her password without her knowledge/consent then how those chats can be regarded as evidence in the court of law?

Who said such things can be taken as evidence in court, you have to prove your allegations properly and not by producing any such fabricate documents, because court will consider them as fabricate documents only.



(4)	When voice call records are not retrievable, then Is it possible to get a court order to reveal the call data record (CDR) of her mobile for last two years (postpaid SIM no. is in her name) for the Reliance Communications no. she is using? 
You may file a petition before curt to send for the records from the concerned authority which are vital to your case. 



(5) Is it easier to get through such a court order for CDR or any private detective agency can access it easily?
Private detective agency will b able to it easily and not court. 
T Kalaiselvan
Advocate, Vellore
14158 Answers
127 Consultations
5.0 on 5.0
1. Any conversation through any medium of social networking which hints towards an extra-marital affair can be used in the court to prove adultery as a ground of divorce.

2. Service providers do not store the actual content of chat or a telephonic conversation except on a court order. So this will be futile. 

3. You can also launch a criminal prosecution for adultery against her boyfriend.

4. To unearth evidence of a wrongdoing committed by your wife you broke into her account. This is your defence to a criminal charge of hacking her account and also a lawsuit for damages which she may file.

5. The call records can always be obtained through a court order. The court will order the service provider to furnish the call records if you are able to show the legal necessity to get so. 
Ashish Davessar
Advocate, Jaipur
18246 Answers
449 Consultations
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