Digital Evidence in Matrimonial Disputes: Challenges and Opportunities

Abstract

The Smartphone has emerged as the most personal record of marital life and now marriages - a lot of times litigation cases in India are decided based on the contents of whatsapps, the covertly recorded calls, call detail records, social-media activity and digital financial trails. This article will provide a brief overview of the fast-changing landscape of such digital evidence in divorce, maintenance, custody and domestic violence cases. It sketches the course of the statutory regime from Section 65A and Section 65B of the “Indian Evidence Act, 1872” to its current form under a dual-signature certificate requirement in Section 63 of the “Bharatiya Sakshya Adhiniyam, 2023”, and explores the foundational admissibility principles that have since emerged from “Navjot Sandhu” to “Anvar P.V.,” then to “Shafhi Mohammad,” and finally to “Arjun Panditrao Khotkar” and Section 14 of the “Family Courts Act, 1984,” which grants Family Courts a unique evidentiary authority. This then raises the core of the normative issue of the field, the balance between the probative value of intimate digital content versus the constitutional principle of privacy, especially as enunciated in K.S. Puttaswamy that was the subject of the recent and controversial Supreme Court judgment in “Vibhor Garg v. Neha” (2025), where the Court agreed that recordings of private conversations between parties in a marriage are admissible in the divorce process. Finally, the article outlines the key issues around authentication, deepfakes, the certificate conundrum, forensic capacity and the gendered nature of intimate surveillance and the opportunities for truth finding and protection in instances of abuse and financial discovery and offers a framework for the way forward