Few matrimonial or domestic violence cases today are fought without electronic material — WhatsApp threads, voice notes, emails, CCTV clips, location history, bank alerts. Yet much of it founders at the evidence stage because the party producing it treats a screenshot as self-proving. It is not. Electronic records produced in secondary form are admissible only on the conditions now found in Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (the successor to Section 65B of the Evidence Act, 1872), and the Supreme Court's three-judge decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (14 July 2020) settled that the accompanying certificate is mandatory. This explainer maps the rules onto DV Act and family court practice in Delhi.
Why electronic evidence dominates family litigation
Cruelty, harassment, dowry demands, financial concealment, adultery, abandonment — the modern evidence of each tends to live on phones. A DV application under Section 12 may stand or fall on a thread of abusive messages; an interim maintenance contest may turn on UPI histories and salary alerts; custody disputes increasingly feature call recordings and school-app messages. The legal framework, however, does not distinguish between a commercial suit and a matrimonial cause: an electronic record is proved the same way everywhere.
The governing rule
Under the Bharatiya Sakshya Adhiniyam, 2023, which applies to proceedings instituted on or after 1 July 2024, Section 63 governs the admissibility of electronic records (its substance carried over from Section 65B of the Evidence Act, 1872, which continues to matter for older proceedings). The core scheme:
What Arjun Panditrao actually decided
The three-judge Bench (Justices R.F. Nariman, S. Ravindra Bhat and V. Ramasubramanian) resolved a conflict in the case law. It held that the certificate under Section 65B(4) is a condition precedent to the admissibility of secondary electronic evidence, overruling the relaxations in Shafhi Mohammad and Tomaso Bruno. But it tempered the rule with a practical safety valve drawn from the maxims lex non cogit ad impossibilia and impotentia excusat legem: a party who has genuinely tried and failed to obtain the certificate from the person controlling the device may seek the court's assistance to summon the certificate or the record, and having done so has discharged its obligation.
A practical protocol for DV and matrimonial matters
Preserve the source: keep the original phone, do not delete the thread, and avoid forwarding as the mode of preservation — forwarded copies invite authenticity challenges.
Export properly: use the platform's export function or take complete-screen captures showing contact identifiers, dates and times, and produce a continuous thread rather than isolated excerpts.
Draft the certificate at filing: annex it to the application or affidavit of evidence, signed by the party operating the device, identifying each annexure it covers.
For records held by others — call detail records, bank alerts, CCTV — move the court to summon the custodian with a certificate, and document any refusal.
Anticipate the response: opposing parties may allege tampering or selective disclosure; completeness and early production are the best answers.
Tactical notes
Two asymmetries deserve attention. First, at the interim stage — Section 23 DV Act relief, interim maintenance, ex parte protection orders — magistrates act on prima facie material, and formally unproved chats often still influence discretion; but a respondent who intends to contest authenticity should say so at the first opportunity rather than at final arguments. Second, at trial, an objection to admissibility for want of a certificate must be taken when the document is tendered; courts permit certificates to be supplied at later stages in appropriate cases, so an ambush strategy can backfire. The safest posture on both sides of the aisle is early, complete, certified production.
This overview describes the statutory scheme and reported precedent for general information. The admissibility and weight of any particular record depend on the facts, the forum and the stage of the proceeding.
Frequently Asked Questions
Is a Section 63 BSA certificate always required for WhatsApp chats?
A certificate is required whenever the record is produced in secondary form — printouts, screenshots, or copies on a pen drive. In Arjun Panditrao the Supreme Court held the certificate mandatory for such secondary electronic evidence, overruling earlier decisions that had relaxed the requirement. Producing the original device itself for the court's inspection stands on a different footing.
Who signs the certificate?
A person occupying a responsible position in relation to the device or the management of the relevant activity — for personal phones, ordinarily the party who owns and operates the device. The certificate identifies the record, describes how it was produced, gives device particulars and confirms the statutory conditions.
Do family courts and DV magistrates apply these rules strictly?
The Family Courts Act, 1984 and Section 28 of the DV Act give these forums some procedural flexibility, and interim relief is routinely granted on prima facie material. But at the stage of final adjudication, contested electronic records without proper proof carry sharply reduced weight and risk exclusion.
What if the other side controls the device or account?
Arjun Panditrao recognises that the law does not demand the impossible: where a party genuinely cannot obtain the certificate because the device is in another's hands, they may apply to the court to summon the record or its custodian. The attempt and refusal should be documented.