BA 2

TEAM CODE:

BEFORE THE HON’BLE HIGH COURT OF NARNIA, ICELAND

IN THE MATTERS OF:

MRS. ROSHNI KAPOOR ... APPELLANT

V.

MR. NEERAV DALVE ... RESPONDENT

APPEAL NOS. ___/2017, ___/2017

ON SUBMISSION TO THE HON’BLE HIGH COURT OF NARNIA

UNDER SECTION 13 OF THE HINDU MARRIAGE ACT, 1955

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS

 TABLE OF CONTENTS

INDEX OF

AUTHORITIES…………………………………………………………………..III

STATEMENT OF JURISDICTION………………………………………………………….VI

STATEMENT OF FACTS…………………………………………………………………..VII

STATEMENT OS ISSUES…………………………………………………………………..IX

SUMMARY OF ARGUMENTS…………………………………………………………….X

ARGUMENTS ADVANCED………………………………………………………………1

1.THAT INTERNET INFIDELITY DOES NOT AMOUNT TO CRUELTY AND

ADULTRY AS A GROUND FOR

DIVORCE…………………………………………………………..1

1.1 THE APPEAL MUST BE DISMISSED ON THE SIMILAR GROUNDS OF THAT OF THE LOWER

COURT..1

1.2 THE MATTER MUST BE TRANSFERRED TO MARITAL THERAPY AS IT IS BEST SUITABLE

PLATFORM FOR SUCH CONTEMPORARY ISSUE………………………………………………..2

1.3 THAT THERE HAS BEEN NO ADULTERY UNDER SECTION 13 OF HINDU MARRIAGE ACT,

1955 AND SECTION 497 OF

IPC……………………………………………………………………3

i
1.4 THAT THERE HAS BEEN NO CRUELTY UNDER SECTION 13 OF HINDU MARRIAGE ACT AND

SECTION 498A OF IPC……………………………………………………………………….4

1.5 THAT THERE IS NO RELEVANT GROUND FOR DIVORCE……………………………………6

2. THAT THE HACKED CHATS BY NAMIT VADIA CANNOT BE CONSIDRED AS

RELEVANT EVIDENCE……………………………………………………………………6

2.1 HACKED CHATS ARE NOT ADMISSIBLE UNDER INDIAN EVIDENCE ACT,

1872………………6

2.2 ILLEGALLY OBTAINED EVIDENCES ARE NOT ADMISSIBLE UNDER COURT OF

LAW………….8

3. THAT THERE HAS BEEN BEACH OF PRIVACY OF MR. NEERAV………………..11

3.1 THAT THE FUNDAMENTAL RIGHT OF RIGHT TO PRIVACY OF MR. NEERAV HAS BEEN

VIOLATED…………………………………………………………………………………….11

3.2 THERE HAS BEEN FAILURE ON PART OF AFFINITY FOILED TO PROTECT ITS CUSTOMER

DATA UNDER ARTICLE 43 A OF IT ACT, 2000……………………………………11

3.3 THERE HAS BEEN IDENTITY THEFT OF MR. NEERAV BY TEAM IMPACT UNDER ARTICLE

66 C OF IT ACT, 2000…………………………………………………………………………

12

3.4 THAT THE PERSONAL LIFE SPHERE DATA OF MR. NEERAV HAS BEEN INTENTIONALLY

RETAINED BY NAMIT VADIA IS OFFENCE UNDER ARTICLE 66 B OF IT ACT, 2000

…………….13

PRAYER……………………………………………………………………………………XIV

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 INDEX OF AUTHORITIES

STATUES, RULES & LEGISLATIONS

THE CONSTITUTION OF INDIA, 1950

INFORMATION TECHNOLOGY ACT, 2000

INDIAN EVIDENCE ACT, 1872

HINDU MARRIAGE ACT, 1955

INDIAN PENAL CODE, 1860

ARTICLES AND JOURNALS

JOURNAL ON CONTEMPORARY ISSUES OF LAW (JCIL), VOL.4, ISSUE2

MAO A, RAGURAM A. ONLINE INFIDELITY: THE NEW CHALLENGES TO MARRIAGES, INDIAN

JOURNAL OF PSYCHIATRY 2009; 51:302-304

AMERICAN ASSOCIATION FOR MARRIAGE AND FAMILY THERAPY;

HTTPS://WWW.AAMFT.ORG/CONSUMER_UPDATES/ONLINE_INFIDELITY.ASPX

MALAYA LAW REVIEW, VOL.6, NO.2 (DEC 1964) PP. 303-326;

HTTPS://WWW.JSTOR.ORG/STABLE/24862234

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 CASES

ANVAR P.V. V. P.K. BASHEER AND ORS.; 4226/2012…………………………………………19

B.D. CHARLES V. SMT. NORA BENJAMIN AND ANR.; AIR 1979 RAJ 156………………14

CHANDRA MOHINI SRIVASTAVA V. AVINASH PRASAD SRIVASTAVA AND ANR.; 1971 AIR

581……………………………………………………………………………………………13

COOPER V. COOPER; 1970 AIR 564…………………………………………………………15

CRAWFORD V. CRAWFORD; 1970 AIR

564…………………………………………………….15

FOWLER V. FOWLER; 1970 AIR 564……………………………………………………..15

SH. VINOD KAUSHIK AND ANR. V. MS. MADHVIKA JOSHI AN ORS.W.P. (C) 160/2012…….21

SMT. MAYADEVI V. JAGDISH PRASAD; 877/2007…………………………………………….16

SMT. NIRMALA MANOHAR JAGESH V. MANOHAR SHIVRAM JAGESH

SQUIRE V SQUIRE………………………………………………………………….15

UTKAL CONTRACTORS V. STATE OF ORRISA; 1987 AIR 2310…………………………………

18

LAW DATABASES

MANUPATRA

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SCC ONLINE

v
 STATEMENT OF JURISDICTION

The Hon’ble High Court of Narnia has jurisdiction to hear the instant matter under Section 13
of the Hindu Marriage Act, 1955.

The section 13 of the Hindu Marriage Act, 1955 reads as:

(1) Any marriage solemnized, whether before or after the commencement of this Act, may,
on a petition presented by either the husband or the wife, be dissolved by a decree of divorce
on the ground that the other party-
[(i) has, after the solemnization of the marriage, had voluntary sexual inter-course
with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
Other parts omitted as are not required.

The Respondents humbly submits to the jurisdiction of the Hon’ble Court.

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 STATEMENT OF FACTS

I. The material case arises out when Mrs. Roshni Kapoor comes to knowledge of fact
that her husband Mr Neerav Dalve has been a user at an adulting website site ‘Affinity
Foiled’ which was hacked by an anonymous group calling themselves ‘Team Impact’
and the personal sensitive chats from hacked accounts with the user identity has been
served on various public platforms and social networking sites by one of the hackers
Namit Vadia.
II. Mrs Roshni Kapoor solely on basis of evidence of chats leaked by Namit Vadia
demands a decree of divorce under the claim that she has been victimized of cruelty
and adultery.

BACKGROUND
III. Iceland is a country where religious scriptures, traditions as well as customary
practices determine the ways of living. The country has been colonized for over 200
years which has led to the change in their original ways of living and acting. ‘Law
became a guiding light for them.’
IV. The laws of island are in pari-materia to the laws of India. In addition, The EU law
on Privacy and Data Confidentiality is treated to be enforceable so as long it is not in
conflict with laws of Iceland.
V. Neerav Dalve and Roshni Kapoor met while pursuing higher education at University
of Iceland. They got married in 2006 under Hindu Marriage Act after living-in for 7
years. Currently, Neerav is a renowned lawyer at the Supreme Court of Iceland and
Roshni works with an NGO for ‘welfare of women’. They were Hindus, but believed
that societal traditions and customs were obsolete.
VI. ‘Affinity Foiled’ is a notorious web service ran by Lakshya Media Life (LML). A
dating site since 2010 with a moto that ‘life is short, have an affair’.
VII. Neerav had joined ‘Affinity Foiled’ in December 2015. He registered with a secret
email and username as ‘Captain America’ and uploaded a deniable display picture.
VIII. The cache of stolen data of the web service which assured itself as 100% discrete, had
been mailed to Arnab- a journalist, by an anonymous informant.

vii
 IX. A group calling itself ‘Impact Team’ claimed responsibility of hacking and also
threatened to release full database of customers of ‘Affinity Foiled’. More than 15 lakh
people all across country were affected.
X. On January 2017, ‘Affinity Foiled’s’ entire customer database was indeed put online.
Hundreds of celebrities and thousands of anonymous men had their details spilled on
internet.
XI. One hacker named Namit Vadia after digging through ‘Affinity Foiled’s’ database
made some salacious findings. He publicized through posting the screenshots of some
personal incriminating messages on his twitter handle and website.
XII. From some leaked internal documents of ’Affinity Foiled’, it was revealed that the
webservice created a network of fake- flirtious chat-bots to converse with men like
Neerav, teasing them to maintain their subscriptions.
XIII. Since the leak has happened, Neerav had not used ‘Affinity Foiled’, nor spoken to
other women.
XIV. As on February 2017, Roshni found out about Neerav’s account on app and decided
to file for decree of divorce on basis of leaked chats by Namit Vadia alleging that this
has amounted to cruelty and is a ground for infidelity.

The Resultant Litigation

XV. Lower court dismissed the petition on ground that the hacked chats were unethically
extracted and contained amorous content serving prurient interest, and were therefore
non-est in eyes of law, and could not be considered as valid evidence.
XVI. Pursuant to aforementioned factual matrix, Mrs Roshni Kapoor has moved to High
Court claiming a degree of divorce under section 13 of Hindu Marriage Act 1955 that
she has been victimized of cruelty and adultery. Due to subsequent dismissal of
petition she is in appeal before High Court.

viii
 STATEMENT OF ISSUES

1. Whether internet infidelity amounts to cruelty and adultery as a ground for divorce
filed by Roshni.
2. Whether hacked internet chats by Namit Vadia could be considered as relevant
evidence.
3. Whether there was a breach of privacy of Mr. Neerav.

ix
 SUMMARY OF ARGUMENTS

I. THAT INTERNET INFEDILITY DOES NOT AMOUNT TO CRUELTY AND

ADULTRY AS A GROUND FOR DIVORCE
The exercise of appeal jurisdiction of High Court under Article 13 of the Hindu
Marriage Act is discretionary in nature, it is argued that the present appeal should be
dismissed: i) on similar grounds of that of the lower court; ii) the matter must be
transferred to Marital Therapy as it is best suitable platform for such contemporary
issue; iii) that there has been no adultery under Section 13 of Hindu Marriage Act,
1955 and Section 497 of the Indian Penal Code; iv) that there has been no cruelty
under Section 13 of the Hindu Marriage Act, 1955 and Section 498A of the Indian
Penal Code; v) that there is no relevant ground for divorce.

II. THAT THE HACKED CHATS BY NAMIT VADIA CANNOT BE

CONSIDERED AS RELEVANT EVIDENCE
That the private sphere of Mr. Neerav’s life, intentionally retained by Namit Vadia is an
offence under Article 66 B of the IT Act,2000. The evidence should not be admissible by
the Hon’ble Court since: i) there has been unlawful interference in personal life sphere of
Mr. Neerav; ii) the chats were unethically extracted and are not fit to be considered as a
valid evidence.

III. THAT THERE HAS BEEN A BREACH OF PRIVACY OF MR. NEERAV

i)The Fundamental Right of Mr. Neerav of Right to Privacy as given by Constitution of India
under Article 21 has been violated; ii) there has been failure on part of Affinity Foiled to
protect its customer data under Article 43A and Article 72 of the IT Act, 2000; iii) there has
been identity theft of Mr. Neerav by Impact Team under Article 66C of the IT Act, 2000; iii)
that the personal life sphere data of Mr. Neerav has been intentionally retained by Namit
Vadia is an offence under Article 66B of the IT Act, 2000.

x
 ARGUMENTS ADVANCED

1. THAT INTERNET INFIDELITY DOES NOT AMOUNT TO CRUELTY AND

ADULTERY AS A GROUND FOR DIVORCE
It is submitted that appeal is not maintainable on primarily four grounds: i) the appeal must
be dismissed on the similar Grounds of that of Lower court; ii) the matter must be transferred
to ‘marital therapy’ as it is best suitable platform for such contemporary issue; iii) that there
has been no adultery under Section 13 of Hindu Marriage Act,1955 and Section 497 of Indian
Penal Code, 1860; iv) that there has been no cruelty under Section 13 of Hindu Marriage Act,
1955 and Section 498A of the Indian Penal Code; v) that there is no relevant ground for
divorce.

1.1 THE APPEAL MUST BE DISMISSED ON SIMILAR GROUNDS OF THAT OF

THE LOWER COURT

The counsel would put forth the argument on basis of some suggesting principles in regard to
admissibility of evidence that has been obtained unlawfully. 1. Disciplinary Principle:
Judiciary should discourage the improper manners used for obtaining evidence; 2. Protective
Principle: acceptance of illegally obtained evidence is breach of individuals right; 3.
Judiciary’s Integrity: maintain respect for administration of justice, the court should be
careful while admitting illegally obtained evidence as by allowing such shreds of evidence,
courts are promoting improper methods of procuring evidences.

In USA, evidence is not admissible if obtained under unlawful search1. In furtherance to this,
the counsel would argue in regard to Justice K. S. Puttuswamy judgement, that has ruled out
that right to privacy is a fundamental right under Article 21 of the Constitution of India. The
right is enforceable against state subject to reasonable restrictions. With the invocation of
privacy as fundamental right under Section 21 of Indian Constitution, admissibility of
illegally obtained evidence is now therefore questioned. Interpreting article 21 of the Indian
Constitution with Section 5 of the Indian Evidence Act,1872, the counsel argues that no
statute should contradict the fundamental rights enshrined in the Indian Constitution.

1
JOE H; LARKIN MUNSTER, MURE A. MILITARY EVIDENCE

1
Therefore, when we interpret Section 5 of Indian Evidence Act, 1872 with Article 21 of
Indian Constitution, we see the contradiction and therefore, let the fundamental right prevail.
Interpreting Article 20 with Section 5 of Indian Evidence Act,1872, which prohibited self-
incrimination and Article 21 that is right to privacy. This will allow for exclusion of illegally
obtained evidence.

1.2 THE MATTER MUST BE TRANSFERRED TO MARITAL THERAPY AS IT IS

BEST SUITABLE PLATFORM FOR SUCH CONTEMPORARY ISSUE

The counsel would urge the court to look into the matter from a contemporary social issue
rather than a marriage dispute. There exists a wealth of literature on the topic of online
infidelity in west, which is in sharp contrast to lack of any published article on this issue in
India. There is a need of understanding the nature of issue and differentiating online infidelity
from skin to skin adultery.

In a case cited2, although, the husband admitted that he had been cyber-sex-chatting, he did
not perceive it as infidelity. He felt it was not so, as there had been no real physical contact
and he merely engaged in it to ‘unwind and relax’ after work. Marital Therapy was planned,
over a period of 2 months therapy focused on enhancing intimacy between the couples by
encouraging them to identify ways by which they could spend more time together and fix the
missing dimension. Research carried on this is area has found a cyber sexual encounter
appears to be typical symptoms of an underlying problem that has existed in marriage before
internet even entered the couple’s life. Pre-existing marital problems include: ‘poor
communication’; ‘sexual dissatisfaction’ or; boredom with the relationship. According to the
authors although these are common problems faced by most couples the presence of such
issues increases the risk of a cyber affair. However, this may not be same always the case as,
online infidelity may occur even in absence of any inherent problems in marriage and among
‘happily married’ couples. Marital Therapy is implicated in dealing with the underlying
issues contributing to online infidelity and in restoring marital trust. According to ‘American
Association for Marriage and Family Therapy’3 : A trained mental health professional can
access your particular situation and recommend the best course of action and treatment. The
counsel argues that: ‘due to something which has troubled the life of married couples which
2
Mao A, Raguram A. Online infidelity: The new challenge to marriages, Indian Journal of Psychiatry 2009; 51:
302-304
3
https://www.aamft.org/Consumer_Updates/online_Infidelity.aspx

2
is due to the change in lives of individual and increasing interference of Internet, something
which is said to be made in heaven should not be broken because of such trifling
psychological issues.’

1.3 THAT THERE HAS BEEN NO ADULTRY UNDER SECTION 13 (i) OF THE
HINDU MARRIAGE ACT, 1955; AND SECTION 497 OF THE INDIAN PENAL
CODE, 1860

Section 13 (i) of the Hindu Marriage Act, 1955 deals with Divorce, and reads as following:

“Any marriage solemnized, whether before or after the commencement of this act, may on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on
the ground that the other party:

(i) has, after the solemnization of marriage, had voluntary sexual intercourse with
any person other than his or her spouse”
Even a single isolated act of adultery will entitle other party to seek judicial
separation from his partner. Only sexual intercourse with a person other than his
or her spouse constitutes adultery, mere acts of intimacy with any other person
does not amount to adultery.

The counsel, on the basis of judgement given by Rajasthan High Court in B.D.
Charles v. Smt. Nora Benjamin and Anr. would argue that, “what is essential for
the offence of adultery is proof of sexual intercourse.”4 There has been nothing as
to satisfy any constituent of the mentioned Section to prove adultery.
It is also to be mentioned the ruling of Hon’ble Supreme Court in Chandra Mohini
Srivastava v. Avinash Prasad Srivastava and Anr. :“The first thing that strikes us
is that mere fact that some male relation writes such letters to a married woman,
does not necessarily prove that there was any illicit relationship between the writer
of such letters and woman who received them ”5
In regard to Indian Penal Code, 1860, Adultery under Section 498 is stated as:
“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

4
AIR 1979 RAJ 156
5

3
 of that man, such sexual intercourse not amounting 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. ”
It is without any reasonable doubt, clear from the interpretation of the above
statute that there has been no adultery in the case.

1.4 THAT THERE HAS BEEN NO CRUELTY UNDER SECTION 13 (ia) OF THE
HNDU MARRIAGE ACT, 1955 AND; SECTION 498 A OF THE INDIAN PENAL
CODE

Section 13 (ia) reads as follows:

“has, after the solemnization of the marriage, treated the petitioner with cruelty”

With regard to this, the counsel would urge the court to look into the matter from ‘aimed at’
school of thought. The Hon’ble Supreme Court of Arkansas has ruled out in Squire v. Squire 6
“I would point out that there is much conduct which may be injurious to health of other but
which may not be aimed at him is not cruelty”

In Kaslefsky v. Kaslefsky7, Cooper v. Cooper8 and Crawford v. Crawford9, it has been ruled
out that “where it has been held that, in absence of an actual intention to injure the other
spouse, cruelty wasn’t established.”

In light of this, the counsel would argue that there has been no intention of Respondent to
cause any mental agony to the Appellant. There is no direct evidence to suggest that the
Respondent sought to injure Appellant. For constituting cruelty, “the conduct complained
should be grave and weighty, so as to come to conclusion that petitioner spouse cannot be
reasonably expected to live with other spouse.” 10

6
486 S.W.2d 910 (1972)
7
1970 AIR 564
8
1970 AIR 564
9
1970 AIR 564
10
SCI; 877/2007

4
The issue complained of is ordinary wear and tear of marriage and should therefore not be
dragged to such an extent as to dissolve the marriage. Also, the conduct must be seen in
background of several factors such as social status of parties, their education, physical and
mental conditions, customs and traditions. The counsel believes the Appellant is very much
rational to understand and perceive the act of Respondent which has not been aimed at her.

The fact that Respondent has not used the web service, nor talked to other women after the
hacking by Team Impact, suggests that Respondent had no intention to continue any act to
constitute cruelty.

It has also been revealed by the fact that Affinity Foiled used a network of fake flirtious chat-
bots to tease men and maintain subscriptions, suggest that there is possibility of absence of an
actual woman who talked to the Respondent or it may be just some system responding to the
Respondent, this suggest that there cannot be infidelity on absence of counter-party.

Respondent had chosen a secret name and a deniable display picture for his account, which
suggest that he did not intended to start any actual affair and did it just to ‘unwind and relax
after work’, and for this, the solution has already been suggested in issue 1.2.

Hon’ble Supreme Court in Smt. Mayadevi v. Jagdish Prasad has opined that “the act must be
of type to satisfy the conscience of court that the relationship between parties had deteriorated
to such an extent due to conduct of other spouse that it would be impossible for them to live
together…”

The counsel would argue that the marriage has not broken down beyond the hope of
reconciliation. Tolerance to each other’s fault to certain extent has to be inherent in every
marriage. Missing dimension must be tried to fill up rather than exaggerating and magnifying
it to destroy what is said to be made in heaven.

As to deal with cruelty under Section 498A of the Indian Penal Code, 1860, it states that:

“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 punished with imprisonment for a term which may extend to three years and shall
also be liable to fine.

5
Explanation. —For the purpose of this section, “cruelty” means—

(a) 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

(b) 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. ”

This, without any need to prove, shows that there has not been cruelty on Appellant when
viewed through lens of IPC.

1.5 THAT THERE IS NO RELEVANT GROUND FOR DIVORCE

In lights of all above arguments, the counsel would now argue that there is nothing to
show that the Appellant has been victimized to cruelty or adultery. The marriage is
not deteriorated to such extent that it would be impossible for them to sustain
together. The need is to fill up the missing dimension in their marriage.

2. WHETHER THE HACKED CHATS BY NAMIT VADIA CAN BE

CONSIDERED AS VALID EVIDENCE.

The hacked chats cannot be considered as a valid evidence because they are not admissible
according to various sections of The Indian Evidence Act ,1872 and due to which it violates
the fundamental rights of the respondent.

2.1 HACKED CHATS ARE NOT ADMISSIBLE UNDER INDIAN EVIDENCE ACT,
1872

6
In Utkal Contractors V. State of Orissa 11case, which is a SC judgement in September ,
1987, the main issue was whether section 61 to 65 of the Indian Evidence Act applies to
electronic contracts. The court in this case held that the legislature does not use any word
unnecessarily as from section 61 to 65, the word “Document or content of documents” have
not been replaced by “Electronic documents or content of electronic documents”. From
this the court understood the intention of the legislature i.e. these sections does not apply to
electronic records. Thus Section 65-B was inserted to The Indian Evidence Act which
exclusively dealt with the admissibility of the electronic record which in view in view of the
compelling technological reasons can be admitted only in manner specified under Section
65B Indian Evidence Act12.

Section 65A covers the special provisions as to evidence relating to electronic record, as per
which the contents of electronic records may be proved in accordance with the provisions of
section 65B13.And section 65B explains admissibility of electronic records which can be used
as evidence in the court of law. But there are few conditions which are to be satisfied in order
to use electronic records as evidence in court of law. Section 65B (1) states anything
contained in the form of an electronic record if is printed on paper or stored or has been
recorded can be accepted as an admissible evidence only when it satisfies certain conditions
laid down in the provisions of section 65B 14.

Clause 4 of Section 65B requires that before any statement is sought to be admitted under
this section in court, a certificate must be produced which is to be signed by person
occupying a responsible official position in relation to the operation of the relevant device or
the management of relevant activities identifying the details of the electronic record and the
particulars of the device used in the production of the electronic record. The certificate so
issued shall be the evidence of any matter stated in the certificate.

11
Utkal Contractor v. State of Orissa, 1987 AIR 2310.

12
Indian Evidence Act, 1872, S.65
13
Indian Evidence Act, 1872, S.65A
14
Indian Evidence Act, 1872 , S.65B

7
In Anvar P.V. vs. P.K. Basheer and ors., 15observed 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.

The court Held 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” 16

Hence it is pointed out to the hon’ble court that evidence provided by the petitioner i.e the
screenshots of the leaked chats should not be taken into consideration because it does not
fulfil the requirements specified under Section 65B(4) of Indian Evidence Act,1872, which
is , producing the signed certificate by a person occupying a responsible official position in
relation to the operation of the relevant device or the management of the relevant activities is
not fulfilled to make the e-evidence admissible evidence it has flow in manner specified
under the section 65B.17

Thus it can be concluded that as the petitioner could not fulfil the conditions laid down under
Section 65B , the leaked chats and screenshots of the chats as evidence is not admissible in
the court of law under Section 65B of Indian Evidence Act, 1872.

2.2. ILLEGALLY OBTAINED EVIDENCES ARE NOT ADMISSIBLE IN THE

COURT OF LAW

15
Civil Appeal No.4226 of 2012
16
Anvar P.V. vs. P.K. Basheer and ors.
17
State v. Mohamed Afzal.

8
It is a civil wrong as well as a criminal offence ie it is illegal to disclose personal data without
the “data collector’s” consent.18 Computer hacking is broadly defined as intentionally
accessing a computer without authorization or exceeds authorized access. Thus hacking is an
offence and it is illegal. The evidence produced by the petitioner are illegally obtained by
hacking which is why it should not be accepted.

“whoever with the intent to cause or knowing that he is likely to cause wrongful loss or
damage to the public or any person destroys or deletes or alters any information residing in a
computer resource or diminishes its value or utility or affects it injuriously by any means
commits hacking”.19

“If any person without permission of the owner or any other person who is in charge of a
computer, computer system or computer network, accesses or secures access to such
computer, computer system or computer network[or computer resource] and downloads,
copies or extracts any data, computer data base or information from such computer, computer
system or computer network including information or data held or stored in any removable
storage medium, he shall be liable to pay damages by way of compensation to the person so
affected”20

Hence it is humbly submitted to the Hon’ble High Court that evidence is produced as a result
of hacking(under section 66 ) and hacking in itself is an offence (under section 43) of the IT
Act, 2000 , the evidences provided by Mr. Namit Vadia are not admissible in the court of law
as the way in which it was procured itself was through illegal means.

In West Bengal Adjudication 21verdict the husband was fined Rs 50000 for breaching the
privacy of his own wife by spying on his wife’s phone using “Team Viewer” software and
18
Data protection Act, 1998
19
Information Technology Act,2000 , S.66
20
Information Technology Act,2000, S.43
21
West Bengal Adjudicator Verdict, 2017

9
used this as an evidence for his matrimonial dispute. Here in this case it was held that the
evidence produced breached the privacy of his wife. “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 owner22”. Due to this reason the evidence produced by the husband
was not considered to be admissible in the court.

In order to prove that illegal evidences are not admissible in court, we shall see the case of
Sh. Vinod Kaushik And Anr. V. Ms.Madhvika Joshi and Others. 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. Hence it is understood that marriage does not give the
privileges or rights to their spouse to involve in illegal acts.

From these cases where evidences were not admissible due to their illegal acts, the
evidences provided by the appellants are also obtained by illegal means and hence is not
admissible in the hon’ble court.

In response to this issue, I would like to add that Mr. Namit Vadia under Section 43A of the
IT Act should be held liable for his illegal activity ie hacking of the confidential data without
the permission of the owner and also for publishing it on social media. He should be held

22
Information Technology Act , 2000 S.43

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liable to pay damages by way of compensation as stated under section 43 of the Information
Technology Act,2000.

3. THAT THERE HAS BEEN BREACH OF PRIVACY OF MR. NEERAV

III.1 THAT THE FUNDAMENTAL RIGHT OF RIGHT TO PRIVACY OF

RESPONDENT HAS BEEN VIOLATED
Article 21 of the Indian Constitution deals with ‘Protection of Life and Personal
Liberty’, it states that “no person shall be deprived of his life or personal liberty
except according to procedure established by law.”
The use of services Affinity Foiled by the Respondent has been done in the private
sphere of his life and spilling out his personal database is therefore infringement of
his Right to Privacy.
Article 21 protects the Right to Privacy and Promotes the dignity of the individual. It
refers to the specific rights of an individual to control the collection, use and
disclosure of personal information.
Further, personal information can be in form of personal interests, habits and
activities, family records, educational records, communications (including mail and
telephone) records, medical records a financial record, to name a few.
Privacy relates to ability to control the dissemination and use of one’s personal
information.
Data protection is a legal safeguard to prevent misuse of information about
individual person on a medium including computers.

III.2 THAT THERE HAS BEEN FAILURE ON PART OF AFFINITY FOILED TO

PROTECT ITS CUSTOMER DATA
The counsel would argue by interpreting this issue with its direct definition and
remedy as stated under Section 43A of the IT Act, 2000:
 “Compensation for failure to protect data. -Where a body corporate, possessing,
dealing or handling any sensitive personal data or information in a computer
resource which it owns, controls or operates, is negligent in implementing and
maintaining reasonable security practices and procedures and thereby causes

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 wrongful loss or wrongful gain to any person, such body corporate shall be liable
to pay damages by way of compensation to the person so affected. Explanation.
-For the purposes of this section, -
(i) "body corporate" means any company and includes a firm, sole proprietorship
or other association of individuals engaged in commercial or professional
activities;
(ii) "reasonable security practices and procedures" means security practices and
procedures designed to protect such information from unauthorised access,
damage, use, modification, disclosure or impairment, as may be specified in an
agreement between the parties or as may be specified in any law for the time being
in force and in the absence of such agreement or any law, such reasonable security
practices and procedures, as may be prescribed by the Central Government in
consultation with such professional bodies or associations as it may deem fit;
(iii) "sensitive personal data or information" means such personal information as
may be prescribed by the Central Government in consultation with such
professional bodies or associations as it may deem fit.
In light of above statue, it is without any glitch, clear that there has been failure on
part of Affinity Foiled to protect its customer data.

III.3 THERE HAS BEEN IDENTITY THEFT OF RESPONDENT BY TEAM

IMPACT
The counsel hereby without any doubt put fourths the Section that directly and
clearly proves that there has been identity theft of Respondent. Section 66C of the IT
Act, 2000 states as follows:
“Punishment for identity theft. -Whoever, fraudulently or dishonestly make use of
the electronic signature, password or any other unique identification feature of any
other person, shall be punished with imprisonment of either description for a term
which may extend to three years and shall also be liable to fine with may extend to
rupees one lakh.”
Here, also applies Section 65 of the IT Act, 2000 which states that:
“Tampering with computer source documents.-Whoever knowingly or intentionally
conceals, destroys or alters or intentionally or knowingly causes another to conceal,
destroy, or alter any computer source code used for a computer, computer

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 programme, computer system or computer network, when the computer source code
is required to be kept or maintained by law for the time being in force, shall be
punishable with imprisonment up to three years, or with fine which may extend up
to two lakh rupees, or with both.
Explanation. --For the purposes of this section, "computer source code" means the
listing of programmes, computer commands, design and layout and programme
analysis of computer resource in any form.”
Hence, it is very much evident when facts are seen in interpretation with the above-
mentioned section that there has been identity theft and breach of privacy of Respondent by
Team Impact.

III.4 THAT THE PERSONAL SPHERE DATA OF RESPONDENT HAS BEEN

INTENTIONALLY RETAINED BY NAMIT VADIA
Namit Vadia has intentionally retained and misused the personal life sphere data of
the Respondent and in addition to this, also publicized it through twitter and his
website. For this, there is direct rule relating from Section 66B and Section 66E of
the IT Act, 2000.
Section 66B reads: “Punishment for dishonestly receiving stolen computer resource
or communication device. -Whoever dishonestly received or retains any stolen
computer resource or communication device knowing or having reason to believe
the same to be stolen computer resource or communication device, shall be punished
with imprisonment of either description for a term which may extend to three years
or with fine which may extend to rupees one lakh or with both.”
This directly targets that the act committed by Namit Vadia is an offence.

Section 66E reads that: “Punishment for violation of privacy. -Whoever, intentionally or
knowingly captures, publishes or transmits the image of a private area of any person without
his or her consent, under circumstances violating the privacy of that person, shall be punished
with imprisonment which may extend to three years or with fine not exceeding two lakh
rupees, or with both.

Explanation. -For the purposes of this section-

(a) "transmit" means to electronically send a visual image with the intent that it be viewed by
a person or persons;

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(b) "capture", with respect to an image, means to videotape, photograph, film or record by
any means;

(c) "private area" means the naked or undergarment clad genitals, pubic area, buttocks or
female breast;

(d) "publishes" means reproduction in the printed or electronic form and making it available
for public; e) "under circumstances violating privacy" means circumstances in which a person
can have a reasonable expectation that; -

(i) he or she could disrobe in privacy, without being concerned that an image of his private
area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether
that person is in a public or private place.”

Here, the counsel would urge the Hon’ble Court to interpret and widen the scope of what
means and includes s ‘private area’.

The dignified personal sphere of an individual’s life should also be taken into account while
defining and dealing with ‘private area’.

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 PRAYER

Therefore, in the light of the issues raised, arguments advanced and authorities cited,
it is humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. That the Appeal by Mrs. Roshni in the High Court of Narnia should be dismissed
as there is no relevant ground for divorce.

2. Order and refer the parties for joint sessions under Marital Therapy.

3. Hold Affinity Foiled liable for unable to protect its customer data und
confidentiality under Article 43A and Article 72 of the IT Act,2000.

4. Hold ‘Team Impact’, ‘Affinity Foiled’, and ‘Namit Vadia’ liable for violating the
Fundamental Right of Privacy as granted by Article 21 of the Constitution of India
of Mr. Neerav under Article 66C; Article 43A and 72; and Article 66B of the IT
Act, 2000 respectively.

And pass any such order or direction as the Honourable Court deems fit and proper,
for this the Respondents shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENTS

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