With the rapid development of science and technology, humans are granted the opportunity to connect from one end of the world to the other. Humans are also granted the privilege to engage and maintain relations with one another, irrespective of the time or place they live. Among these amazing technological miracles are Facebook which connects people more closely, creating a revolutionary platform to strengthen ties with their loved ones and also to establish new ties, irrespective of boundaries created by land or sea. But, it is justifiable to state that Facebook, considered as the God-given messenger in the contemporary world has become the Achilles’ heel in matrimonial relations paving the path to divorce.
The Sri Lankan law under Section 19 of the Marriage Registration Ordinance 1907, has recognised three main grounds for divorce; namely, adultery, malicious desertion and sexual impotency. In simple terms, adultery is considered as engaging in extra-marital intimate relations subsequent to marriage by one spouse with another who is not his/her spouse, and it is important to bear in mind that the exact time, date and place must be proved to the court beyond reasonable doubt, when relying on this ground for divorce.
Malicious desertion is exercised under two counts; either malicious desertion which is simply leaving the matrimonial house or constructive malicious desertion which is leaving the house by one spouse upon the acts of the other, with the intention never return to the matrimonial house. Whereas, when relying on the ground of sexual impotency, it is important that it arises subsequent to the marriage and is medically incurable.
Many common social media platforms such as, Facebook, Instagram and Tinder, Facebook and Facebook Messenger which is the messaging platform of Facebook have created havoc in matrimonial relations in contemporary society. For instance, one spouse approaching or attempting to approach another person he/she is attracted to by way of messages and pictures through Facebook Messenger in secrecy is a common occurrence in the modern world. Author John G. Browning in the, “Guide to social Networking”, states: “Social networking sites do not encourage people to have affairs. Relationship experts have observed that relationships tend to develop quickly online because of lower inhibitions and the fact that technology helps them to find ex-loves from the past. The most common reason is having sexual chats with people they were not supposed to”.
Moreover, the notion of exchanging passwords of each other’s Facebook account is considered a sign of trust and loyalty nowadays and couples who do not do so are constantly drowned in the oceans of great and malicious suspicion, ultimately, leading to desertion.
Electronic communications
But how do we bring an encoding in a digital platform as evidence to the court and how do we make such evidence admissible in courts? In the case of Abubakhar v Queen 54 NLR 566, it was observed that mechanical records such as tape recordings are admissible as evidence in courts. With the advancement of science and technology, Evidence (Special Provisions) Act No. 14 of 1995 provided that electronic communications such as, videos, computer printouts and photographs are admissible in court as evidence (by virtue of Section 4) on the condition that notice must be given to the opposing party 45 days before the date fixed for trial (Section 7 (a)). It must be noted and appreciated that the courts in this country have been making efforts to recognise electronic communications as admissible evidence in courts as per Section 3 of the Evidence Ordinance and this was clearly established in the case, Re S.A. Wickramasinghe 55NLR 511.
In the recent judgement in the Commercial High Court case H.C. (Civil) 181-2007 (MR), Justice Chitrasiri observed that in his opinion, an SMS received on the screen of a mobile phone that has been typed by another person from a different point and sent with the assistance of technology could be admitted in evidence. In the circumstances, he had decided that the original message received by a mobile phone should be considered as admissible in evidence in terms of the provisions in the Evidence Ordinance 1985 which helps us to draw an inference that the same grounds are applicable to Facebook messages.
Reasonable grounds
Can explicit pictures shared upon consent and explicit conversations by way of messages on Facebook be used as admissible evidence in proving adultery in courts? Adultery, which is considered to be the most serious among the other two grounds to dissolve marriage, has received such onus of burden of proof due to its necessity of strictly being proved beyond reasonable doubt as established in the case of Jayasinghe v Jayasinghe. Thus, it can be seen that the degree of proving adultery is equal to that of a crime with one hundred percent accuracy giving the date and the place of the adultery committed.
Hence, it is important to bear in mind that such evidence can only be used to corroborate the act of adultery as this evidence does not establish the act of adultery beyond reasonable doubt. Therefore, having uploaded a picture on Facebook with a loved one will only amount to more pictures and the contents of the photographs will only establish certain facts of events and whether they are admissible or not as evidence is yet to be decided on in court within the framework of the Evidence Ordinance (Special Provisions) Act. No. 14 in concurrence with the Electronic Transactions Act of 2006.
Even though evidence retrieved through Facebook has not yet been admitted in evidence in the Sri Lankan courts, we can infer that there is a great likelihood that Sri Lankan courts will allow such evidence under the notion that it conforms to the provisions of the Evidence Ordinance (Special Provisions) Act No. 14 of 1995 and if it is also in conformity with the Electronic Transactions Act 2006, based on the basic principle of the law of evidence. Hence, it would be justifiable to conclude that the possibility of this information received through Facebook and other social media being admissible in courts would be a fair choice.
The article is co-authored by Bhagya Silva and Chathura Nuwan Herath (Legal Researchers at Derek Fernando Associates).