Evidence required in a Divorce Proceeding
A divorce procedure basically starts with the filing of a divorce petition. The whole procedure of divorce works when the said petition is written by any of the one parties involved in the divorce process and the served to the other party. Evidence is the key to get success in divorce cases. As per Indian Evidence Act, 1872, \”Evidence\” means and includes: (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2)all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
As discussed in the case of V.V. Prabhakaran V. T. Chandramathi[1], “the incidences to which more independent witnesses are party to it are more likely to get succeed in a divorce case”. The incidences like- wife insulting in front of Panchayat, friends and relatives has more credibility and chance of getting divorce gets increased. The incidences to which more independent witnesses are party to it are more likely to get succeed in a divorce case. For dissolution of marriage, the grounds for divorce must be proved by cogent and clear evidence beyond reasonable doubt so as to satisfy the court.
For instance, a divorce may be granted on the ground that the respondent has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. This is a legal presumption of death which is based on English law of evidence. The presumption is drawn by reason of the fact that if the person were living, the person would probably have communicated with some of his or her friends and relatives. Evidence as to reasonable inquiry or search about the respondent is necessary to be adduced by the petitioner. But the onus of proving that the respondent is alive lies on the person who pleads so. As per Indian Evidence Act, 1872, section 3, a fact is said to be proved when, after considering the matters before it, the Court; either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Letters and WhatsApp messages will help in proving mental cruelty element and are often used in most successful cases. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant. It was observed in the case of Cooper v. Cooper[2], “Very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to show itself in conduct and behaviour. Day in and day out, night in and night out” It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival. The Court had an occasion to examine the 1976 amendment in the case of N.G. Dastane vs. Dastane[3], The Court noted that \”whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent\”. We deem it appropriate to examine the concept of \’Cruelty\’ both in English and Indian Law, in order to evaluate whether the appellant\’s petition based on the ground of cruelty deserves to be allowed or not\”.
In the case of Ranjeet Kumar Singh vs. Kalyani Devi[4], The learned family court has discussed each of these allegations at length in the light of the evidence on record and its findings do not suffer from any misappropriation of evidence or perversity. Conversion of a TDA/ Fixed Deposit in the name of the only daughter born out of the wedlock by the respondent could not be an instance of mental cruelty. The matrimonial suit was instituted after three years of the institution of the Itkhori PS Case No. 160 of 2008 on allegations of demand of dowry and cruelty in marriage. During the pendency of this appeal, the appellant has been convicted of the said charge. As such, the allegations of cruelty have been made against the petitioner rather than the respondent. The acquittal of the appellant in a case under Section 494 of the Indian Penal Code for want of evidence can alone not lend support to the petitioner’s allegations of cruelty in marriage in such circumstances. It is common experience that evidence of solemnization of a second marriage is difficult to be brought by the complaining spouse. As such, on an analysis of the entire material evidence on record and the pleadings of the parties, we do not find any such error of law or on facts, which deserves to be disturbed. But, if you get an acquittal along with other circumstances as mentioned above then it creates a case for divorce.[5]
In a recent judgement by the Bombay High Court, Dismissing a woman’s case for restitution of conjugal rights with her husband, the court held that, “In fact, a person from the same locality only could tender evidence on the facts involved in the case”. The Family Court did not consider that the wife had painted a very dark picture of her husband and despite that she was seeking a decree for restitution of conjugal rights. The Family Court observed that there was no concrete reason for the parties to live separately. On the basis of the pleadings of the parties, both the husband and the wife, it was necessary for the Family Court to hold that there were several justifiable reasons for the parties to live separately.[6].
So evidences which could be used for the purpose of divorce proceedings are:
- Family members who are witness to incidents
- Relatives, Friends or Neighbours who are witness to incidents
- Letters or documents required to prove any allegation
- Call/Emails/Whatsapp/Facebook messages, chats
- Backups of Laptops/Phones
- Bank Records, investments proofs, Income Tax records
- Spouse’s office/Linkedin profile or business listings
Conclusively, it is up to the court to decide whether to pass a decree for dissolving the marriage. If the court is satisfied with the evidences which have been presented to pass a decree for dissolving the marriage, then, the court will pass the decree in favour of the petitioner. The evidences provided in a divorce proceeding are appreciated on the burden of proof as required under the civil cases.
[1] Mat. Appeal. No. 360 of 2013.
[2] Cooper v. Cooper (1950) WN 200 (HL)
[3] 1975 AIR 1534
[4] AIR2018Jhar192.
[5] Mat. Appeal. No. 360 of 2013.
[6] Dilip Govindrao Thakre vs. Rekha Dilip Thakre, MANU/MH/3170/2016.
