- Among many common social media platforms Facebook and Facebook Messenger have been able to create havoc in matrimonial relations
- Facebook which is considered as the God given messenger in the contemporary world has become the Achilles’s heel in matrimonial relations paving the path to its ultimate destroyer; the divorce
- It must be noticed and appreciated that the courts in this country have been making efforts to recognize electronic communications as admissible evidence in courts
With the rapid development of science and technology, humans are granted with opportunity to connect from one end of the world to the other. Humans are granted with the privilege to engage and maintain relations with each other irrespective of the time or place they live across. Among these amazing technological miracles is Facebook which has been able to connect 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 which is considered as the God given messenger in the contemporary world has become the Achilles’s heel in matrimonial relations paving the path to its ultimate destroyer; the divorce.
As per Sri Lankan law under Section 19 of the Marriage Registration Ordinance 1907, it has recognized three main grounds for divorce; namely, adultery, malicious desertion and sexual impotency. In simple terms, adultery is considered as engaging in extramarital intimate relations subsequent to marriage by one spouse with another who is not his/her spouse and it is important to be borne in mind that the exact time, date and place must be provided to the court when relying on this ground for divorce which projects that adultery as a ground for divorce has to be proved beyond reasonable doubt. Malicious desertion is exercised under the limelight of two counts; either malicious desertion which is simply leaving matrimonial house or constructive malicious desertion which is leaving the house by one spouse upon the acts of the other spouse with the intention to never return to the matrimonial house. Whereas when relying on the ground of sexual impotency, it is important that it is subsequent to the marriage and that it is medically incurable.
Among many common social media platforms like Facebook, lnstagram and Tinder, Facebook and Facebook Messenger which is the messaging platform of Facebook have been able to create havoc in matrimonial relations in the 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 secret to his/her spouse is a common occurrence in the modern world. Whilst citing the writer John G. Browning on “Guide to Social Networking”, he states that “Social networking sites do not make people 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 to be having sexual chats with people they were not supposed to.” Moreover, the notion of exchanging passwords of each other’s Facebook account is considered as 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, leaving to occurrences such as desertion.
But how do we bring an encoding in a digital platform as evidence to the court and how to make such evidence admissible in courts? In the case of Abubakharv Queen54 NLR566, it was observed that mechanical records such as tape recordings were admissible as evidence in courts. Lately with the advancement of science and technology, Evidence (Special Provision) Act No. 14 of 1995 provided several provisions that electronic communications such as videos, computer printouts and photographs are admissible in courts as evidence (By virtue of Section 4) provided under 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 noticed and appreciated that the courts in this country have been making efforts to recognize electronic communications as admissible evidence in courts as per Section 3 of the Evidence Ordinance and this was clearly established in the case of re S.A Wickramasinghe55NLR511.
In the recent judgment in the Commercial High Court case H.C.(Civil) 181-2007(MR) MR, the Honourable Judge Mr. Chitrasiri has observed that in his opinion, an SMS which is 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 has 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 on terms of Facebook messages.
Can explicit pictures shared upon consent and explicit conversations by way of messages on Facebook be used at admissible evidence in proving adultery in courts? Adultery, which is considered to be the most serious ground 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 i.e. 100% 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 these evidences do not establish the act of adultery beyond reasonable grounds. Therefore, having uploaded a picture on Face Book 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 in court within the framework of the Evidence Ordinance (Special Provisions) Act No.14 and concurrently with the Electronic Transactions Act of 2006.
Even though evidence retrieved through Facebook has not yet been submitted as admissible 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 with 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 by being based on the basic principle of law of evidence. Hence, it would be justifiable to conclude that the possibility of the above mentioned information received through Facebook and other social media being admissible in courts would be a fair choice.
Ian. J.F. Fernando is an attorney-at-law at Derek Fernando Associates while Bhagya Silva and Chathura Nuwan Herath are Legal Researchers at
Derek Fernando Associates.