Family Courts can admit WhatsApp chats procured without consent as evidence in matrimonial disputes: MP High Court

Madhya Pradesh High Court: In an appeal against the Family Court’s order permitting the husband, to mark WhatsApp chats procured without wife’s consent through an application installed on her phone, as exhibits in the matrimonial proceedings instituted by him under Section 13 of the Hindu Marriage Act, 1955, a single-judge bench of Ashish Shroti, J., upheld the Family Court’s order to admit the WhatsApp chats as evidence and emphasised that in matrimonial disputes, the relevance of evidence prevails over the means of its procurement.

The Court laid down safeguards for Family Courts when admitting such evidence —

1. Examine authenticity and genuineness meticulously.

2. Conduct in-camera proceedings if evidence is sensitive.

3. Maintain decorum and propriety.

4. Permit civil or criminal remedies for illegal procurement but hold such evidence admissible, nonetheless.

5. Apply a higher standard of scrutiny for such evidence.

Factual Matrix

In the instant matter, the marriage between the petitioner-wife and the respondent-husband, was solemnized on 01-12-2016 in Gwalior according to Hindu rites. A daughter was born from wedlock on 11-10-2017. The husband filed a petition under Section 13 of the Hindu Marriage Act, 1955, seeking dissolution of marriage on the grounds of cruelty and adultery. In his pleadings, he specifically referred to WhatsApp conversations purportedly between the wife and third person, claiming they showed evidence of an extramarital affair. These chats were allegedly auto forwarded to the husband’s phone through a special application installed on the wife’s mobile.

During the trial, the husband sought to exhibit these WhatsApp chats as evidence. The wife raised objections and argued that such evidence was obtained illegally, infringing her right to privacy and violating provisions of the Information Technology Act, 2000. The Family Court vide order dated 13-04-2023, however, overruled the objections and allowed the evidence to be marked. Aggrieved by the impugned order passed by the Family Court, the wife filed the present petition, challenging the same.

Moot Point

1. Whether WhatsApp chats procured without the consent of the wife through an application installed on her phone is admissible in evidence?

2. Whether such evidence, if obtained in breach of privacy, is protected under the law and can be relied upon by the Family Court?

3. What is the scope of Section 14 of the Family Courts Act, 1984 in terms of the admissibility of evidence?

Parties’ Contentions

The counsel for the wife submitted that the evidence was obtained illegally and without consent, thereby violating her fundamental right to privacy under Article 21. The reliance was placed on Sections 43, 66, and 72 of the Information Technology Act, and it was argued that unauthorised access and disclosure of personal data is illegal.

However, the counsel for husband claimed that the WhatsApp chats are relevant to prove the allegation of adultery. It was contended that Section 14 of the Family Courts Act can be invoked, which allows the Family Court to accept any document or information that may assist in resolving the dispute, irrespective of its admissibility under the Indian Evidence Act.

Court’s Observations

• Objective and Scope of Sections 14 and 20 of Family Courts Act

The Court underlined that Section 14 of the Family Courts Act is a departure from the strict rules of admissibility under the Evidence Act, 1882 and is rooted in the object of facilitating a less adversarial and more conciliatory procedure in family matters. Referring to the statement of objects and reasons of the Family Courts Act, the Court noted that

“…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 Evidence Act, 1872.”

Thus, the Court held that the only test for receiving evidence under Section 14 is whether the Family Court is of the opinion that such material would assist it in dealing effectively with the dispute.

“The only test under Section 14 for a Family Court to receive the evidence, whether collected legitimately or otherwise, is based upon its subjective satisfaction that the evidence would assist it to deal effectually with the dispute… What value or weightage is to be given to such evidence is the discretion of the judge, when finally adjudicating the dispute.”

The Court stated that Section 20 of the Family Courts Act has an overriding effect on any other inconsistent law, including the Evidence Act. Therefore, the Family Court is empowered to admit evidence irrespective of how it was collected or whether it is otherwise admissible under conventional rules.

• Right to Privacy v. Right to Fair Trial

While acknowledging the right to privacy as a fundamental right under Article 21, as held in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the Court firmly clarified that this right is not absolute and must be balanced against other competing rights, particularly the right to a fair trial, which is also rooted in Article 21 of the Constitution of India.

“Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under Article 21 of our Constitution, the right to privacy may have to yield to the right to fair trial.”

Citing Sharda v. Dharmpal, (2003) 4 SCC 493, the Court observed that “…when there is no right to privacy specifically conferred by Article 21 and with the extensive interpretation of the phrase ‘personal liberty’… some limitations on this right have to be imposed… The court has to reconcile these competing interests by balancing the interests involved.”

The Court also invoked the principle laid down in Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603, that no constitutional value is absolute, and when two rights are in conflict, one may have to yield to the other depending on context and purpose.

• Illegality of evidence collection — Not a bar to admissibility

Relying on R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471, the Court noted that “a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved.” Therefore, the Court held that the manner of procurement. even if questionable or unauthorized, does not render the evidence inadmissible, so long as it is relevant to the matter in issue.

• Section 122 of Evidence Act — Spousal Communications

The Court read Section 122 of the Evidence Act in conjunction with matrimonial proceedings and observed that “Section 122 of Evidence Act permits disclosure of any communication made to a person during marriage by any person to whom he is married in a suit between married persons.” Hence, the Court held that the communications between spouses, including WhatsApp chats, can be led in evidence in suits involving them, and this is consistent with both the letter and the spirit of the law.

• Conflicting judgments rendered Per Incuriam

The Court noted that earlier decisions that refused to admit such evidence such as Anurima v. Sunil Mehta, 2015 SCC OnLine MP 7340; Ram Talraja v. Sapna Talreja,¹ Abhishek Ranjan v. Hemlata Choubey,² did not examine the applicability of Section 14 of the Family Courts Act and Section 122 of the Evidence Act, and hence are rendered sub silentio and per incuriam.

The Court invoked the principles laid down in Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 and Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189, and held that such decisions are not binding precedents.

The Court ultimately held that evidence, even if collected improperly, may be admitted as long as it is relevant. What weight to assign to such evidence is for the Family Court to decide at the stage of final adjudication.

• Admissibility is not Proof

The Court clarified that “admitting evidence is mere inclusion of evidence in record, to be assessed on a comprehensive set of factors, parameters and aspects, in the discretion of the court.” The Court asserted that the admission of evidence does not equate to proof of a fact-in-issue, and it is open to the opposing party to contest, cross-examine, and disprove such evidence during trial.

Court’s Guidelines

The Court issued certain guidelines and safeguards to be followed by Family Courts to ensure balanced exercise of discretion under Section 14 of the Family Courts Act —

1. Scrutiny of authenticity: Even though evidence is admitted, its authenticity and genuineness must be stringently examined.

2. In-Camera Proceedings: Where evidence is sensitive, the court should consider in-camera hearings to preserve dignity and avoid public embarrassment.

3. No spectacle: The process must uphold decency and avoid creating a spectacle under the guise of leading evidence.

4. Civil or Criminal Liability not barred: Admitting evidence does not absolve the procurer from liability under civil or criminal law for how such evidence was obtained.

5. Higher Standard of Proof: Courts should apply stricter scrutiny to such evidence to guard against fabrication or tampering.

Court’s Decision

The Court dismissed the wife’s petition and upheld the Family Court’s order permitting the husband to mark the WhatsApp chats as exhibits. The Court held that “the evidence is admissible so long as it is relevant, irrespective of the fact how it is collected.”

[Anjali Sharma v. Raman Upadhyay, Miscellaneous Petition No. 3395 of 2023, Decided on 16-06-2025]

Advocates who appeared in this case :

Shri Shubhendu Singh Chauhan, Counsel for the Petitioner/Wife

Shri Sankalp Sharma, Counsel for the Respondent/Husband

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