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TEAM

CODE: 15R

SUPREME COURT OF NEVERLAND

………………...…………PETITIONER

VERSUS

……………………...RESPONDENT

TERRA GAIA …………………………………………………………..…………..PETITIONER

VERSUS

THE GOVERNMENT OF FARALLON & THOMAS TOMAKIN…..………………….RESPONDENT

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4TH AURO NATIONAL MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

LIST OF ABBREVIATIONS 2

INDEX OF AUTHORITIES 5

STATEMENT OF JURISDICTION 7

STATEMENT OF FACTS 8

ARGUMENTS PRESENTED 12

SUMMARY OF ARGUMENTS Error! Bookmark not defined.

ARGUMENTS ADVANCED 13

PRAYER 34

LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR. All India Reporter

AC Appeal Cases

IJP Indian journal of physiatry

All ER All England Law Reports

Art. Article

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GDPR General data protection regulation

CDA communications Decency Act

CPJ Consumer Protection Journal

Cri. LJ Criminal Law Journal

CLR Criminal Law Reporter

DLR Delhi Law Reporter

ECHR European Convention on Human Rights


Ed. Edition

EHRR European Human Rights Reports

ITA Information technology Act

FB Full Bench

SCI Supreme court of India

G.O. Government Order

HL House of Lords

L.L Live law .net

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KB. King's Bench

NC National Commission

R.P.N Republic of Neverland

THFP The Huffington Post

Ors. Others

pg. Page

QB Queen's Bench

S.C. Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter


SCW Supreme Court

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INDEX OF AUTHORITIES

CASES REFERRED TO

1. Sansford v Sansford

2. C.Howel v R.S. Howel 1982 RLR 522(India).


3. Darmir v Dornis 1955 (2) Aer 51

4. Pinakin Mahipatray Rawal v State Of Gujarat (2013) 10 SCC 48(India).

5. K.V Prakash Babu v State Of Karnataka SC 1363(India).

6. Navratan Baid v Neetu Baid

7. P.(S.E.) v P.(D.D.) 2005 BCSC 1290 (CanLII).

8.Chandra Mohini Srivastava v Avinash Prasad Srivastava & Anr AIR 1967 SC 581(India).

9. J.Sadhu Amma v J.Satyanarayana 1967

10. V. Veera Vara Prasad v. Vasireddy Vasumathy

11. Hemamalini v A.Pankajanabham and ors 1994 (3) ALT 30, I (1995) DMC 258.

12. Alapati Venkayamma v alapati Kesava Rao and Anr 2004 (3) ALT 247, II (2004) DMC
275

13. Samar ghosh v Jaya Ghosh(2007) 4 SCC 511(India).

14. Harpal Singh @ Chhota Vs. State Of Punjab CRR-3251-2015

15. Anvar P.V. v P.K. Basheer and others(2004) 10 SCC 473(India).

16. State of Maharashtra and anr. v Madhukar Mardikar AIR 1991 SC 207.

17. West Bengal Adjudication verdict

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18. people’s union for civil liberties v union of India(2013) 10 SCC 1.

19. Rayala M. Bhuvaneswari v Nagaphanender Rayala air 2008 AP 98.

20. Vinod Kaushik v. Madhvika Joshi(2011)

21. Digambar Khattar v Union Of India

ARTICLES

https://vakilsearch.com/advice/writ-petition-india-filing-drafting/

http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=deaf8251-5a4a-4c50-
b8e1-7be4929c7b29&txtsearch=Subject:%20Constitution

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STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Supreme Court of Neverland, under the special
leave petition filed under the Article --------of the Constitution of Republic of Neverland

The Respondents humbly submit to the jurisdiction of the Hon’ble Court in response to the
petition filed by the Petitioners.

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STATEMENT OF FACTS

I.
Neverland is a pluralistic society where, religious scriptures, traditions as well as
customary practices determine the ways of living. All aspects of life including
marriage, divorce, succession, adoption, and even trading transactions were
extensively dealt with by these scriptures and practices. Neverland being colonized
for 200 years made law the guiding light for the people of neverland. the scriptures
and religious practices continued to have an upper hand over law.

II.
It was 9’o clock on a Sunday night, 27th November 2016, when a journalist named
Logan who lived in Gotham, a city in the country Neverland got a tip off in form of an
anonymous mail about a database leak. A Firm called Fevid Media Life registered under
Companies Act,2013 ran a notorious widely publicized web service called Affinity Foiled
a dating site since 2010 with an explicitly admitted intention of helping married people
have affairs. They claimed to have a membership of 20 lakhs and assured that the
service would be anonymous and 100% discreet. Logan published a story about a
hack of servers at ‘Affinity Foiled’ was quickly picked up by prominent media agencies.
III.
Steve Rogers a married man living in the west of Neverland who happened to be
renowned lawyer working in the Supreme Court of Neverland while skimming
through the news online saw the news of the leak by the impact group who threatened
to leak the personal information of the users of the site. Roger got married to
Stephanie Hunt in 2006 under the Hindu Marriage Act. Stephanie is an artist and a
social worker who works with an NGO ‘Justice League’. Justice League works for
the welfare of women. After listening to the news of the affinity foil Roger got
disturbed as he was a member of the said website.

Roger though confessed that he took some precautions for saving himself from being
caught, this included adding a profile picture which made it hard for people to recognise

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him also the user name provided by him was “captain America” but all these steps taken
by him went into vein as he had used his credit card for the payment of the membership
of the said website which contained his information.

IV

On 12 January, 2017, ‘Affinity Foiled’s entire customer database was put online by
THE IMPACT TEAM. A few suicides were reported. Peter Parker a pundit in
Louisiana and friend of Rogers was amongst them. Speaking to the media after his
death, Peter’s wife said that he had discovered his name on the list before he killed
himself. She said she would have forgiven her husband, and so too would have God.
Also, During the early weeks of the crisis FML, the company behind ‘Affinity Foiled’,
stopped responding in any sort of adequate way to calls and emails from its terrified
customers, including from Rogers. FML made superficial adjustments to the
homepage of its website, at some point deciding to remove the graphic that described
‘Affinity Foiled’ as “100% discreet”.

V.
Tony Stark who is in his late 30s and has his expertise in internet security and a mild-
mannered technology consultant from Krypton As a side project, since 2013, he has
been running a free web service, Himtoo.com, that allows concerned citizens of the
internet to enter their email addresses, go through a simple process of verification, and
then learn whether their personal information has ever been stolen or otherwise exposed
in a data breach. Only this time, desperate, difficult and extremely personal messages
began arriving in his inbox almost immediately after the leak. And one of such mailers
was Roger who confessed to Tony his reasons for subscribing to ‘Affinity Foiled’ in
the first place where I he admitted that he joint joined ‘Affinity Foiled’ one night
bored, honestly out of curiosity ” He pleaded to Tony who could do nothing for him.
He even revealed about intention which was coloured by confusion of if he should
admit everything to his wife and the people who mattered to him, and he wondered
what that might cost him.

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Members and former members of ‘Affinity Foiled’ began to receive anonymous


extortion letters.and Roger them he was unnerved by the emails but ignored them. One
hacker named AFLolz had spent hours and hours digging through ‘Affinity Foiled’s
database after the leak, going out of his way to draw attention to his most salacious
findings. He made some of the findings that he’d subsequently publicized through an
AFLolz Twitter feed and an AFLolz website in one of his deep searches he’d come
across emails that suggested members of ‘Affinity Foiled’s staff were themselves
having extramarital affairs. He posted screenshots of incriminating personal messages,
and several magazines and newspapers picked up on his findings and ran stories.
Rogers found that screenshots from his secret name Captain America’s profile had also
come up. AFLolz might not have been involved in the ‘Affinity Foiled’ hack, but he
was certainly involved in giving it an impactful afterlife just because he found it
humorous.

VII

Roger wasn’t sure that every woman he had spoken to during his time on the site was
genuine. Sometimes, when the conversation had a flavour of “classic soft porn”, he had
wondered if his correspondents were employees of the company, typing out standard
stuff from scripts also The likely truth, as suggested by internal documentation made
available by the leak, was that, that the Coders at ‘Affinity Foiled’ had created a
network of fake, flirtatious chatbots to converse with men like Rogers, teasing them
into maintaining their subscriptions with the site but ROGER Rogers had been
corresponding online with someone real through ‘Affinity Foiled’. Like him, she too
was in a stable companionable marriage, lacking only a certain dimension. She lived in
the north of Neverland. She and Rogers shared tastes in books and spoke a lot on the
phone too but they had never met in person. Sometimes they discussed their partners
and their respective marriages, other times they steered from the subject. There was a
sexual element to the affair, Rogers said, but they had never slept together. It was a
relationship that was valuable to Roger. ‘Affinity Foiled’ was thought of by Rogers, as
a way of having a “safe affair” safe in the sense that he did not think it likely that he’d
be found out by his wife; he had his special browser, his secret email ID. It was also
safe in the sense that he didn’t think anyone would get hurt. Since the leak happened,

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Rogers had not used ‘Affinity Foiled’ nor spoken to the woman who stayed in northern
Neverland.

VIII
Stephanie ,as of February 2017, found out about his affairs . also in a discussion with
her friend she confessed about the threat to commit suicide that she received from
Rogers when she had confronted him by telling him that she would leave him therefore
, Stephanie decided to go ahead and file for a divorce in in the lower court; on the basis
of the evidence of the leaked chats by AFLolz amounting to cruelty and on the ground
of infidelity, the lower court granted her divorce. Then an appeal was filed by Rogers
in the High Court, which challenged the decision of lower court of granting divorce on
the ground of considering the hacked chats as valid evidence since essentially these
were actions done in private sphere of life, and their public access was a violation of
his right to a private life. He also filed a writ petition for a mandamus directing the
Government to take down the servers hosting, flashing or republishing the leaked data
also the High Court first granted the mandamus, and reversed the judgement of lower
court and declared that divorce would not be granted and the hacked chats were
unethically extracted, and contained amorous content serving prurient interests, and
were therefore non-est in the eyes of law, and could not be considered as valid evidence.

IX
An Appeal by Special Leave is now filed in Supreme Court by Stephanie, challenging
the High Court decision on the validity of evidence presented in the lower court. She
also wrote to the Attorney General to challenge the decision in the writ petition, which
was acceded to and the Government of Neverland also filed an Appeal by Special Leave
challenging the decision in the Writ Petition. Steve Rogers sued ‘Affinity Foiled’ for
damages. The lower court ruled in his favour on the basis that there was a contract for
consideration, to keep the information confidential; the court ordered damages to be
paid to Rogers by Affinity Foiled. ‘Affinity Foiled’ filed an appeal to the High Court
against the decision of the lower court relying on the judgment in Writ Petition that
“amorous purposes would not lead to valid contracts” and the consideration paid was
for doing something illegal and hence it was a void contract. The High Court however
disagreed with this obiter from the previous decision, and upheld the order of the lower

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court saying that first, the contract was enforceable, and from another viewpoint,
‘Affinity Foiled’ had every reason to protect private information received in a fiduciary
capacity, even without a contract, and thus ‘Affinity Foiled’ was liable to pay the
damages. Aggrieved by the judgment of the High Court, ‘Affinity Foiled’ filed an
appeal in the Supreme Court challenging the decision of High Court. Both these
petitions were clubbed together under the Supreme Court Rules, 2013 and the Supreme
Court decided to hear the matter in March 2018. Also the laws of Neverland are pari-
materia to the laws of India. In addition, the EU law on Privacy and Data
Confidentiality is treated to be enforceable so long as it is not in conflict with the laws
of Neverland.

SUMMARY OF ARGUMENTS

1. that merely having a chat with a person on an online site will not amount to internet
infidelity, and if at all it amounts to internet infidelity will not be either adultery and cruelty
justifiable ground for divorce as for Adultery to take place under section 497 of Indian
Penal Code to occur there has to be a physical intercourse also the same is not a ground for
cruelty .

2. that the chats hacked by Aflolz cannot be admissible evidence as it is obtained illegally,
also if considered as secondary evidence there arises a question of authenticity of the chats
. the council for the respondent pleads to the hon’ble court to consider the fact that the law
act as deterrent, and if an evidence attained by illegal means is admitted by the hon’ble
court then in that case the infringement of right to privacy will occur which will further be
in contradiction with the Constitution of Neverland

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3. That the act of granting writ of Mandamus by the high court seeking removal of data
from website is justified by article 226 of the constitution of Neverland with is para
Materia to the Constitution of India as the respondent’s right to privacy was being
infringed which is a fundamental right under article 21 of the constitution of Neverland
which is para Materia to the constitution of India.

4.

ARGUMENTS ADVANCED

CONTENTION 1:

The council on behalf of the respondent humbly submits before this hon’ble court that the
respondent never indulged in internet infidelity and if at all he did, it doesn’t amount to adultery
or cruelty as in a case of adultery a person has to have a sexual relation i.e sexual intercourse
and the act of penetration has to take place with a married woman with her consent which in
this case has not occurred as the respondent never met any of the chat partners. Also, there are
no sufficient facts or reasons to believe that this act of chatting on an adult chatting website
will amount to marital cruelty as defined by the hon’ble supreme court in a leading case law

1.1 NO ADULTERY HAS TAKEN PLACE

As per section 497 of Indian Penal Code, whoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the wife of another man,
without the consent or connivance of that man, such sexual intercourse not amounting

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to the offence of rape, is guilty of the offence of adultery, and shall be punished with
imprisonment of either description for a term which may extend to five years, or with
fine, or with both. In such case the wife shall not be punishable as an abettor. THIS
CLEARLY REVEALS THAT FOR ADULTERY TO TAKE PLACE, THE ACT OF
SEXUAL INTERCOURSE SHOULD TAKE PLACE WITH THE CONSENT OF A
MARRIED WOMAN.

In SANSFORD v. SANSFORD1 , it was found that on a number of occasions, the


wife masturbated the co-accused. It was held that mere masturbation of the one by the
other does not come within the ambit of mutual sexual intercourse. That of course is an
act of sexual familiarity which on any view of the marriage can hardly be thought to be
consistent with the duties of a wife towards her husband but the same cannot amount to
an adultery.

In the case of HOWEL vs R.S. HOWEL2 it was observed that all that the petitioner has
deposed is that her husband and her girl of 11 to 12 years of age were indulging in
indecent acts and were naked in a room. Even while describing the incident on the
second occasion she deposed that the respondent was lying Ob the girl with his hand on
the private part of the girl. Obviously after she noticed this nothing further could have
happened because she had entered the room thereafter. There is not even an allegation
in in the petition or a suggestion in the evidence that there was any penetration by the
man of the girl. At best these could be said to be indecent acts of sexual gratification
and as long as they are unaccompanied by some penetration they cannot amount to
adultery.

In DARMIR V DORNIS3, the Court of Appeal came to the conclusion that the act of
the parties did not constitute adultery. It was further held that adultery cannot be proved
unless there is some penetration. It is not necessary that the complete act of sexual
intercourse should take place but if there is penetration by the man of the woman
adultery may be inferred but if there is no more than an attempt it is not possible to
record the finding of adultery.

1
Sansford V Sansford
2
C.Howel V R.S Howel 1982 RLR 522
3
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In the given case, it can be inferred that merely having a chat over an internet site cannot
amount to adultery. One of the essential conditions of adultery is having sexual
intercourse, which in the given case was not fulfilled. Therefore, Roger cannot be held
guilty under section 497 of Indian Penal Code,1860.

1.2 THAT THE FACTS STATED IN THE CASE DO NOT SATISFY THE
ESSENTIALS OF ADULTERY.

The ingredients of offence of adultery under section 497 of IPC are:

i) The accused had sexual intercourse with a woman;

ii) Such woman was married;

iii) The accused knew or had reason to believe it;

iv) The connection was held without the consent or connivance of the husband.

v) The sexual connection so held does not amount to rape.

1.3 NO INCIEDENT OF CRUELTY HAS HAPPENED IN THE CASE PRESENT


BEFORE THIS HON’BLE CASE
Cruelty has been defined under section 13 of Hindu Marriage Act,1955
(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty

Cruelty has also been defined under section 498A of Indian Penal Code,1860
 498A. Husband or relative of husband of a woman subjecting her to cruelty.—
Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be pun-ished with imprisonment for a term which may extend

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to three years and shall also be liable to fine. Explanation.-For the purpose

of this section, “cruelty” means—


 any wilful conduct which is of such a nature as is likely to drive the woman
to commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
 harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any
property or valuable security or is on account of failure by her or any person
related to her to meet such demand.]

In PINAKIN MAHIPATRAY RAWAL V STATE OF GUJARAT4 justices


K.S Radhakrishanan and P.C Ghose ruled “essentially we are of the view that the
mere fact that the husband has developed some intimacy with another during the
subsistence of marriage and failed to discharge his marital obligations, as such
would not amount to mental cruelty”.

The Supreme Court in K.V. Prakash Babu vs. State of Karnataka5, has held
that solely because the husband is involved in an extra-marital relationship and
there is some suspicion in the mind of wife that cannot be regarded as mental
cruelty which could attract section 498A/306 of IPC.
In Navratan Baid V Neetu Baid 6 the court observed “Dealing with the
allegations levelled by the woman that her husband was in touch with many other
women over phone even after their marriage, the bench said her deposition on
this issue was "not convincing".

4
Pinakin Mahapatray V State Of Gujarat (2013) 10 SCC 48(India)
5
K.V Prakash Babu V State Of Karnataka SC1363(India)
6
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To be granted a divorce in Canada, an individual has to show that the marriage


has broken down, established by one of the three grounds listed in section 8 of
the Divorce Act:
Breakdown of a marriage is established only if:
(a) the spouses have lived separate and apart for at least one year immediately
preceding the determination of the divorce proceeding and were living separate
and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since
celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to
render intolerable the continued cohabitation of the spouses.
In the case of P. (S.E.) v. P. (D.D.)7 the court defined adultery as intimate sexual
activity outside of marriage, regardless of the specific nature of the sexual act
performed. Cyber-sex or sexting, however, while obviously emotionally
devastating to the other spouse or partner, does not reach the level of intimacy
necessary for it to function as adultery under the Divorce Act.

This means that a person who seeks to divorce someone on the basis of their
virtual infidelity must first separate from their partner and live separate and apart
for one full year.
Cyber-sex or sexting are simply not infidelity under the Canadian legal definition.
In Chandra Mohini Srivastava vs Avinash Prasad Srivastava & Anr 8, the
SUPREME COURT held that “mere fact that some male relation writes love
letters to a married woman, does not necessarily prove that there was any illicit

7
P.(S.E.) V P.(D.D.)2005 BCSC1290( canL II)
8
Chandra Mohini Srivastava V Avinash Prasad Srivastava & Anr 1966(SC), 1967 AIR 581, 1967 SC
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relationship between the writer of the letters and the married woman, who
received them”.

ANDHRA HIGH COURT in J. Sadhu Amma v. J. Satyanarayana; 1967 (91)


An.W.R. 179 (D.B.)held:
The mere fact of having been found in the company of another person is not
sufficient to infer an act of adultery or sexual intercourse.
In V. Veera Vara Prasad v. Vasireddy Vasumathy, 1994 (2) LS. 213 (D.B.);10
Division Bench of this court dismissed the appeal filed by the husband, which
was filed against the order of the court below, dismissing the petition for
dissolution of the marriage on the ground of adultery and desertion. The
allegation was that the wife was talking to a man, when she was in her parents'
house, where she was residing separately from her husband. The Division Bench
held that the same does not amount to illicit intimacy with the third party and
therefore, the husband is not entitled for decree of divorce.
In Hemamalini v. A. Pankajanabham and Ors11.
another Division Bench of this Court, while setting aside the decree of dissolution
of the marriage granted in favour of the husband in an appeal filed by the wife,
held that the evidence adduced on behalf of the husband being self-contradictory,
unsatisfactory and unnatural, he is not entitled for decree of divorce.
12
In Alapati Venkayamma vs Alapati Kesava Rao And Anr. on 15
September, 2003
If the facts of the present case are considered in view of the principles laid down
in the above cited decisions, we do not find that there are any acceptable and

9
J.Sadhu Amma V J.Satyanarayana1967 (1) An.W.R. 179 (D.B.)
10
V. Veera Vara Prasad v. Vasireddy Vasumathy, 1994 (2) LS. 213 (D.B.);
11
Hemamalini V A.Pankajanabham and ors
12
Alpathi Venkammya v Alapati Kesava Rao and Anr 2004 (3) ALT 247, II (2004) DMC 275 18

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reliable evidence to come to the conclusion that the 1st respondent/petitioner had
proved his case by producing reliable and acceptable evidence that the appellant
had illegal intimacy with the 2nd respondent or with any other person, as well as
to prove that the appellant had treated the 1st respondent with cruelty. In the
absence of any such acceptable and reliable evidence, the conclusion arrived at
by the court below is not sustainable and the order and decree of the Court below
are set aside.
The hon’ble supreme court of India in SAMAR GHOSH V JAYA GHOSH 13explained in
detail about what amounts to cruelty by stating certain instances which can be considered as
mental cruelty.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and
suffering as would not make possible for the parties to live with each other could come within
the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes
abundantly clear that situation is such that the wronged party cannot reasonably be asked to put
up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language,
petulance of manner, indifference and neglect may reach such a degree that it makes the
married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration
in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode
or render miserable life of the spouse.

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(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and
mental health of the other spouse. The treatment complained of and the resultant danger or
apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the
normal standard of conjugal kindness causing injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes
unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce
on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens
in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period
of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent that because of the acts and behavior
of a spouse, the wronged party finds it extremely difficult to live with the other party any longer,
may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and
without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or
abortion without medical reason or without the consent or knowledge of her husband, such an
act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there
being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the
marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded
that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported
by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of

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marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In
such like situations, it may lead to mental cruelty.

The council for the respondent humbly submits that in a similar case of divorce filed
in Australia after Ashley Madison hack.The hon’ble court did no grant a divorce in
this case as the husband was just chatting and did not intend to maintain any extra-
marital relation.
In the facts of the case present before this hon’ble court it is clear that Roger had no
intention of meeting the lady and also the council for the respondent humbly submits
that there was no love affair between the respondent and the lady, what existed was a
relation of close friendship and this can be proved by the very fact that they mostly
shared their interest in books and other hobbies.
Hence there are no reasonable grounds to believe that the act of chatting amounted to
cruelty to the wife.

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CONTENTION 2: that the hacked chats cannot be considered as valid evidence


as are not admissible according to sections of the Indian evidence and is not gained
from a reliable source act and also violates the respondent’s fundamental right .

2.1 The council on behalf the respondent submits that the hacked chats cannot be used
as evidence as it does not fulfil all the criteria as mentioned in section 65B of Indian
Evidence Act,1872.

The Supreme Court in Harpal Singh @ Chhota Vs. State Of Punjab, 14 has reiterated that
any electronic record in the form of secondary evidence cannot be admitted in evidence unless
a certificate under Section 65B (4) of the Evidence Act is produced.

In the instant case, the prosecution had produced printed copy of the computer generated call
details kept in usual ordinary course of business and stored in a hard disc of the company server,
to co-relate the calls made from and to the cell phones including those amongst others
recovered from the accused persons. However, a certificate relatable thereto as required under
section 65B(4) of Indian Evidence Act was not adduced.

On appeal, though the conviction recorded by the trial court and high court was upheld, the
bench comprising Justice AK Sikri and Justice Amitava Roy, referring to Anvar P.V. vs. P.K.
Basheer and others, observed that as the prosecution had relied upon secondary evidence in the
form of printed copy of call details, even assuming the mandate of section 65B(2) had been
complied with, in the absence of certificate under section 65B(4), the same has to be held
inadmissible in evidence.15

14
Harpal Singh @ Chhota Vs. State Of Punjab
15
Anvar P.V. v P.K. Basheer and others(2004) 10 SCC 473(India). 22

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The bench explained the position of law by holding that “An electronic record by way of
secondary evidence shall not be admitted in evidence unless the requirements under Section
65B are satisfied. Thus, in the case of CD, VCD, chip, etc, the same shall be accompanied by
a certificate in terms of section 65B obtained at the time of taking document, without which,
the secondary evidence pertaining to that electronic record, is inadmissible”.

Therefore, in the given case, the chats leaked by AFLOLZ is not admissible under section 65B
of Indian Evidence Act,1872.

2.2 that the chats were obtained by unfair means which prima facie infringes the
respondent’s right to privacy

Illegality arises when the person has obtained an evidence by deceit, stealing or in the
case of Cyber Evidence, by “hacking”. Impropriety may arise when there was a legal
means and a procedure for collection of evidence which was not followed.

Obviously, it is easy to assume that “Procedural Irregularities” can be condoned but


human rights activists often raise objection when evidence has been obtained through
illegal means.

The opposition to the Courts accepting an illegally obtained evidence stems from the
fact that it may violate the “Constitution of India”, the “Right to Privacy” and such other
principles which are dear to some activists and even some Judges.

The ambit of Article 21 of the Constitution has embraced the Right to Privacy within
its ambit. The Supreme Court in the case of State of Maharashtra and anr. v/s.
Madhukar Mardika16r further laid down that a person of easy virtue is entitled to the
right to privacy.

In the digital age, a lot of chapters of our lives are recorded in cell phones, laptops,
email accounts and other digital media. As a matter of fact now-a-days emails, sms and
chat records constitute important evidence in matrimonial disputes and cases filed
under Section 498A of the Indian Penal Code. There are many instances where parties

16
State of Maharashtra and anr. v Madhukar Mardikar AIR 1991 SC 207. 23

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resort to hacking or unauthorized access to obtain such evidence. A simple online


search will provide a long list of software capable of providing call records, chat history
and other personal data from cell phones, which is a complete violation of the
fundamental right to privacy

A major question that arises is that can such tainted evidence be admissible in a Court
of law and can a victim resort to obtaining evidence by using these methods. Definitely
a victim is entitled to receive justice, but does that justify unauthorized acts on the part
of the victim to substantiate his/her claims.

This very issue came up before the Adjudicating Officer, Government of Maharashtra,
in the case of Vinod Kaushik & Anr. (R) Noida v/s. Madhvika Joshi and Others (R) Pune.17

The facts of this case were very interesting and a common case scenario in today’s times of
unauthorized access to data in cyberspace.Madhvika Joshi (the Respondent No. 1) was an
employee of a software company in Pune, and was married to Neeraj Kaushik (the Petitioner
No.2). As Madhvika had a troubled matrimonial relationship, she obtained unauthorized access
to the email accounts of the petitioners , printed their chat sessions and produced those as
evidence to pursue her case under Section 498A of the Indian Penal Code against the
petitioners. In pursuance of the same, Madhvika’s husband was arrested by the Delhi Police.
Thereafter, her husband filed an application for damages and compensation against the
respondents before the Adjudicating Officer, Government of Maharashtra, in connection with
the unauthorized access of their email accounts. The Adjudicating officer held Madhvika as
“technically guilty” of breaching Section 43 of the Information Technology Act, 2000.

Section 43(a) of the Information Technology Act, 2000, which reads as under:

Penalty and compensation for damage to computer, computer system, etc.-

If any person without permission of the owner or any other person who is in charge of

17
West Bengal Adjudication verdict

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a computer, computer system or computer network,-

accesses or secures access to such computer, computer system or computer network (or
computer resource)

(he shall be liable to pay damages by way of compensation to the person so affected).

A reading of this legal provision makes it clear that the complainant would have to show that
the act of unauthorized access has resulted in sufferance of damages. In the present case it
was noted by the Adjudicating Officer that Madhvika had used the said information retrieved
by her from email accounts of the petitioners only for the purpose of pursuing her case under
Sectio 498A of the Indian Penal Code and for no other purpose, and there was no
compensation awarded as there was no material damage.

In West Bengal Adjudication verdict18 in which a husband was fined for violating the
privacy of his wife when he extracted evidence supportive of his matrimonial dispute
case by means which were held violative of the privacy of his wife. In this case, the
illegality was only restricted to using of a shared password between husband and wife
or “access to a system exceeding the authority provided by the owner” (Section 43).
Such contraventions may be considered as “Technical Overreach” by one party and is
unlikely to be strong enough a reason for rejecting the evidence (if it is relevant).

2.3 THAT THE HACKED CHATS ARE NOT AUTHENTIC

Evidence retrieved from a computer system or other electronic device must be


authenticated before it can be used in a court as evidence in a particular case. To
determine the data are genuine and accurate, computer evidence may be authenticated
through direct or circumstantial evidence. Evidence must also be collected in such a
way as to ensure that it is not altered.

Authentication is a process whereby the original data is compared to a copy of data to


determine if the two are exactly the same.

18
West Bengal Adjudication verdict

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Key to authentication is the chain of custody because electronic evidence is easy to


modify- often without leaving a trace.

The authenticity of electronic evidence depends on the computer program that


generated or processed the data in question. The validity of the chosen program used
in the computer forensics process must be proven.

Standards have been developed to determine the validity of computer forensics tools
and therefore, their admissibility in court of law.

The council on behalf of the respondent submits before this honourable court that the
chats cannot be used as evidence as it was obtained by illegal means. Its clearly
mentioned in the facts of the given case that chats were hacked by a person named
AFLOLZ and hacked chats cannot be used as authentic evidence.

2. 3: THAT THERE WAS VIOLATION OF RIGHT TO PRIVACY

According to article 21 of the constitution of India: No person shall be deprived of his


life personal liberty except according to procedure established by law.

Right to privacy has been defined under article 21 of the constitution. The right to
privacy is protected as an intrinsic part of the right to life and personal liberty under
Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution of
neverland which is similar to that of India.

The right to privacy in India has developed through a series of decisions over the past 60 years.
Over the years, inconsistency from two early judgments created a divergence of opinion on
whether the right to privacy is a fundamental right.

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In the given case, the evidence so obtained infringes the right to privacy of the respondent. The
chats leaked by AFLOLZ were nothing but personal chats of the respondent and no one has the
right to leak someone else’s personal chat.

Telephone tapping also amounts to invasion of right to privacy. In people’s union for civil
liberties v union of India 19 it was held that “occurrence of any public emergency” or “in
interest of public safety” are the sine qua non for the application of the provisions of section
5(2) of Indian telegraph act,1885. Unless these two conditions are satisfied, the government
cannot exercise its power under the said section of telephone tapping even though there is
satisfaction that it is necessary or expedient to do so in the interest of sovereignty of India etc.
The expression “public safety” means the state or condition of freedom of danger or risk for the
people at large.

In another case named Rayala M. Bhuvaneswari vs Nagaphanender Rayala20 it was held


that: Article 21 was invoked by submitting that the privacy of the appellant's conversation was
invaded. Article 21 contemplates procedure established by law with regard to deprivation of
life or personal liberty. The telephonic conversation of an innocent citizen will be protected by
Courts against wrongful or high handed interference by tapping the conversation. The
protection is not for the guilty citizen against the efforts of the police to vindicate the law and
prevent corruption of public servants. It must not be understood that the Courts will tolerate
safeguards for the protection of the citizen to be imperilled by permitting the police to proceed
by unlawful or irregular methods. This was a case where police made tapping, but still the
Supreme Court was of the view that Courts would not tolerate safeguards for the protection of
the citizen to be imperiled.

In this digital age, the evidence of a matrimonial offence is mostly contained in a computer,
laptop, mobile phone, tablet or any other computer resource. This brings into the picture The
Information Technology Act, 2000. For example, in the case of an alleged adultery by a wife,
the husband would present the proof of the same from the emails, whats apps and other social

19
People’s Union for civil liberties v Union Of India (1995) 5 SCC 139
20
Rayala M.Bhuvaneswari V Nagaphanender Rayala AIR 2008 AP 98 27

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media interaction she has exchanged with her boyfriend. The main issue here is the manner in
which the husband would obtain this data. If the husband hacks his wife’s email accounts or
unauthorisedly accesses her smses he is liable under the Information Technology Act to
compensate his wife for the alleged unauthorised access and is liable to be punished for
hacking.

In the landmark case of Vinod Kaushik v. Madhvika Joshi21, whereby the concept of right to
privacy was included in the relationship of marriage also. There is a right to privacy which a
spouse enjoys even in a matrimonial relation and if the other spouse unauthorisedly accesses
smses, whatsapp mesaages and emails to prove a ground for divorce, then it renders such an
erring spouse liable under the Information Technology Act. This party presenting such
evidence in a Family Court has not come to the court with clean hands, thereby restricting or
negatively affecting the remedies available to him.

In Digambar Khattar V Union Of India22 the supreme court held that “Right to freedom of
speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom
means the right to express one's convictions and opinions freely by word of mouth, writing,
printing, picture, or in any other manner. When a person is talking on telephone, he is exercising
his right to freedom of speech and expression. Telephone- tapping unless it comes within the
grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution."

The request is here is that the law should be deterrent, hence if this contract will be made
admissible by the hon’ble court, the people will not care about other’

21
Vinod Kaushik v madhvika joshi(2011)
22
Digambar Khattar V Union Of India 28

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3: THAT HIGH COURT CAN GRANT A WRIT OF MANDAMUS IN THE CASE


PRESENT BEFORE THIS HON’BLE COURT

The council on behalf of the respondent humbly to submits to this hon’ble court that
the high court can grant a mandamus on the basis of the arguments stated below -

3.1 that the high court under article 226 of the constitution of neverland has a
jurisdiction to grant a writ of mandamus definition of mandamus and concept of
mandamus under article 226 of the constitution of neverland which is para materia
to the constitution of India

Mandamus according to(Black's law dictionary, Ninth Edition cite blacks law dictiona)23"
A writ issued by a court to compel performance of a particular act by lower court or
governmental officer or body, to correct a prior action or failure to act.

Mandamus according to (Wharton's Law Lexicon, 15th Edition, 2009)24

"A high prerogative writ of a most extensive remedial nature. In form it is a command
issuing in the King's name from the King's Bench Division of the High Court only,
and addressed to any person, corporation, or inferior court of judicature requiring
them to do something therein specified, which appertains to their office, and which
the court holds to be consonant to right and justice. It is used principally for public
purposes, and to enforce performance of public duties. It enforces, however, some
private rights when they are withheld by public officers. The order of mandamus is of
a most extensive remedial nature, and is in form, a command issuing from the High
Court of Justice, directed to any person, corporation or inferior tribunal, requiring him
or them to do some particular thing therein specified which appertains to his or their
office and is in nature of a public duty.

Mandamus is not a writ of right, it is not consequently granted of course, but


only at the discretion of the court to whom the application for it is made; and this
discretion is not exercised in favor of the applicant, unless some just and

23
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usefulpurpose may be answered by the writ. 25(Cite-


http://www.manupatrafast.com/articles/popopenarticle.aspx?id=deaf8251-5a4a-4c50-
b8e1-7be4929c7b29&txtsearch=subject:%20constitution) in the given case,
the high court cannot grant mandamus under article 227 as artic227
states power of superintendence over all courts by the high court:
every high court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it
exercises jurisdiction

3.2 that the case is of public nature and is related to the


fundamental right of the petitioner and the respondent and many
others like him.

the council for the respondent pleads that though the case here is related to a private
body but deals with the infringement of the right to privacy, right to dignity and
reputation of not just one person but of many others hence in the case present before
this hon’ble court the council on the behalf humbly contends before this hon’ble court
that the mandamus granted by the high court stands justified. for instance, a licensing
officer is under a duty to issue a license to an applicant who fulfils all the conditions
laid down for the issue of such license. but despite the fulfilment of such conditions if
the officer or the authority concerned refuses or fails to issue the license the aggrieved
person has a right to seek the remedy through a writ of mandamus.

3.3 right to privacy of the respondent is infringed

right to privacy which falls under the ambit of article 21 of constitution of India which
is para Materia to constitution of neverland in the case present before the hon’ble bench
has been violated, and hence, the high court granted the writ of mandamus to safeguard
the fundamental right of the petitioner and many others like him.

in the recent verdict given by the hon’ble supreme court of india while deciding on the
landmark case of right to privacy the hon’ble bench stated “privacy is the constitutional core
of human dignity. privacy has both a normative and descriptive function. at a normative level
privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom

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are founded. at a descriptive level, privacy postulates a bundle of entitlements and interests
which lie at the foundation of ordered liberty privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual
orientation. privacy also connotes a right to be left alone. privacy safeguards individual
autonomy and recognizes the ability of the individual to control vital aspects of his or her life.
personal choices governing a way of life are intrinsic to privacy. privacy protects heterogeneity
and recognizes the plurality and diversity of our culture. while the legitimate expectation of
privacy may vary from the intimate zone to the private zone and from the private to the public
arenas, it is important to underscore that privacy is not lost or surrendered merely because the
individual is in a public place. privacy attaches to the person since it is an essential facet of the
dignity of the human being;

3.3 that the petitioner has a right to forget under the general data protection regulation
which further justify the granting of mandamus by the hon’ble high court

according the E.U charter of fundamental rights stipulates that citizens have the right to
protection of their personal data. the general data protection regulation on the
protection of natural persons with regard to the processing of personal data and on the
free movement of such data. the regulation is an essential step to strengthen citizens'
fundamental rights in the digital age and facilitate business by simplifying rules for
companies in the digital single market. a single law will also do away with the current
fragmentation and costly administrative burdens according to article 17 of the gdpr, the
right to erasure, state data subjects have the right to obtain erasure from the data
controller without undue delay, if one of the following applies:

the controller doesn’t need the data anymore the subject withdraws consent for the
processing with which they previously agreed to (and the controller doesn’t need to
legally keep it [n.b. many will, e.g. banks, for 7 years. the subject uses their right to
object (article 21) to the data processing the controller and/or its processor is processing
the data unlawfully there is a legal requirement for the data to be erased
the data subject was a child at the time of collection (see article 8 for more details on a
child’s ability to consent)

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if a controller makes the data public, then they are obligated to take reasonable steps to
get other processors to erase the data, e.g. a website publishes an untrue story on an
individual, and later is required to erase it, and also must request other websites erase
their copy of the story.

here in the case present before the hon’ble supreme court of neverland the quantum
of the damage is very high hence to enforce the right to forget /erasure the high court
granted the writ of mandamus .

CONTENTION 4: compensation claims be made against a non-state entity only in an enforceable


contract or under common law as well.

4.1 that there existed a valid contract between the company and the respondent.

The council on the respondent humbly submits that there exists a contract under Section 2 (h)
of the ICA,1870 which is backed by all the essentials required for a valid contract under section
10 of the contract act. In the present case the consideration was 100% discretion and anonymity
of the user guaranteed by the company for Rupees 500 as subscription fee followed by a
monthly charge. This makes the company liable for breaching the contract due to the lack of
security and regulations by the company, the chats and identity along with the personal details
were revealed by the hackers. This clearly indicates that there was a breach of contract from
the side of the company which makes them liable for compensating the respondent.

4.2 That the company is liable to pay compensation on the basis of common as well.

The counsel on behalf of the respondent humbly submits that the facts present in the problem
clearly reveal that there existed a fiduciary relationship between the company and the
respondent due to which the company FML owed a duty of care towards the respondent also

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tthe hacking reveals the negligence of the company towards its subscribers which was further
proved by the instance of non-answering and removing the 100% discretion logo. This shows
the negligent attitude of the company which makes them liable for the breach of duty to care.

In the case of Donghue v Stevenson26 where Lord Atkin propounded following rule that you
must take reasonable care to avoid acts and omission which are likely to cause injury to other
person and even thought there existed no contract between the manufacture and the customer
the former was held liable for breach of duty to care in Blyth V Birminham Waterworks
Co.Alderson B. held that negligence is the omission to do something which a reasonable man
guided upon those considerations which ordinarily regulate the conduct of human affairs
,would do or doing something which a prudent and reasonable man would not do . the law
requires the caution which a prudent man would observe but the standard of care to be
exercised depends from situation to situation . if the magnitude of risk is high the requsite
precaution should be taken. Similar was held in Nirmala v Tamil Nadu Electricy Board

4.3 The company made negligent misstatements

By the virtue of the above facts it has been noted that the company indulged in giving statement
which were misleading and attracted a huge number of subscribers. These statements included
the guarantee of 100% discretion and anonymity which actually never existed therefore the
company misguided the subscribers. The house of lords in Hedley Byrne And Co. lmt v
Heller and Partners 27 clearly held that there existed a duty to take care in making the
statement and there will be breach of duty if the same were done negligently

4.

26
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PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities cited, the
Counsel for the Respondents humbly pray before this Hon’ble Court as per the principles of
natural justice, equity and good conscience, to kindly adjudge and declare:

• That the Government Order dated July 14, 2210 banning the flickle ‘The
Keating Story’ is valid and be complied with.
• That the criminal proceeding for defamation initiated against the Petitioners is
constitutional and be proceeded with.
• That the Government Order dated July 28, 2210 blocking the access to the
website of buyme.far is valid.
• That the Sections 66A and 69A of the Information Technology Act are
constitutional and be upheld.

And pass any other appropriate order as the Hon’ble Court may deem fit.

And for this act of kindness, the Respondents as in duty bound, shall forever pray.

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Respectfully Submitted

Sd/-

Counsel for Respondents

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