WhatsApp Chats as Evidence in Divorce and Family Cases: The BSA 2023 Rules

WhatsApp chats are admissible in Indian divorce and family cases, and judges act on them, but only when they enter the record the way the Bharatiya Sakshya Adhiniyam 2023 (BSA) requires: as electronic records under Sections 61 to 63, normally carried by a certificate under Section 63(4). Anyone planning to use WhatsApp chats as evidence must answer three separate questions, and parties routinely mix them up: is the chat relevant, is it admissible, and is it authentic. This guide covers the BSA rules that replaced Section 65B of the Evidence Act, the 2025 ruling on secret spousal recordings, the Family Court's wider power under Section 14, and how to prove a chat the other side calls fake.

Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.

WhatsApp chats as evidence: the three layers every litigant should know

Family litigation in India now runs on phones. Cruelty petitions quote late-night messages, adultery allegations rest on chat exports, and maintenance fights turn on a spouse's own words about income. Before any of that persuades a judge, the chat has to clear three layers.

The first layer is relevance. A message must speak to a live issue in the case: taunts and threats that support cruelty as a ground for divorce, messages to a third person that support an adultery plea, or admissions about salary and property that contradict the Rajnesh v. Neha asset and income affidavit. If the chat proves nothing in issue, admissibility never arises.

The second layer is admissibility, which is where the BSA machinery operates. A WhatsApp chat lives on a phone as electronic data. The moment you print it, export it to PDF or copy it to a pen drive, you are producing what Section 63 BSA calls computer output, and computer output has its own entry rules, including a certificate.

The third layer is weight. Getting a chat marked as an exhibit does not mean the court believes it. The judge still weighs authenticity, completeness and context, especially where fabrication is alleged. Our guide on proving adultery in divorce deals with the standard of proof for that ground; this article deals with the admissibility machinery that gets the record before the judge at all.

The three layers at a glance:

The BSA 2023 rules: Sections 61 to 63 explained

The BSA came into force on 1 July 2024 and replaced the Indian Evidence Act 1872. Matters already pending on that date generally continue under the old Act, so lawyers cite both numberings in pairs.

Section 61 BSA declares that an electronic or digital record cannot be denied admissibility only because it is electronic, and gives it, subject to Section 63, the same legal effect as any other document. Section 62 (the successor of Section 65A of the Evidence Act) routes proof of the contents of electronic records through Section 63. Section 63 (the successor of Section 65B) then does the heavy lifting.

Section 63(1) treats information from an electronic record that is printed, stored or copied (a chat printout, a PDF export, a copy on a pen drive) as a document, admissible without production of the original, if the section's conditions are met. Section 63(2) lists four conditions, which in a family case translate simply: the phone was in regular use under lawful control, data of that kind was fed into it in the ordinary course, the device was working properly (or any fault did not affect the record), and the output reproduces that information. Section 63(3) expressly covers records created across multiple devices, networks and intermediaries, which matters because a WhatsApp message passes through the sender's phone, the platform's servers and the recipient's phone.

Because Bengaluru courts are hearing matters filed under both regimes, keep the old and new numbering side by side:

The practical message: the new law does not make WhatsApp evidence easier. The certificate has become more demanding, and the certificate decides most fights.

The Section 63(4) certificate: who signs it and what it must say

Section 63(4) requires a certificate to accompany the electronic record at each instance where it is submitted for admission. The certificate must identify the electronic record containing the statement, describe the manner in which it was produced, give particulars of the device involved, and address the Section 63(2) conditions. Matters need only be stated to the best of the knowledge and belief of the person signing, and the certificate must be in the form set out in the Schedule to the BSA.

The Schedule form is split in two. Part A is completed by the party side: the person in charge of the computer or communication device, in a matrimonial case usually the spouse who holds the phone. Part B is completed by an expert. The form asks for device particulars and for the hash value of the record along with the algorithm used, such as SHA-1, SHA-256 or MD5. A hash value is a short alphanumeric string generated from the file; change one character in the file and the hash changes completely, which is why courts want it on record.

Two Supreme Court rulings anchor this area. Under the old law, Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (Supreme Court, 14 July 2020) settled that the certificate under Section 65B(4) of the Evidence Act is mandatory for secondary electronic evidence, overruling the relaxed view in Shafhi Mohammad. One narrow relaxation survives: where a party genuinely tried and failed to obtain a certificate from the person controlling the device, the law does not demand the impossible, and the court can direct its production. That logic applies with equal force to Section 63(4) BSA, which reproduces the old scheme with additions.

Under the new law, a three-judge Bench of the Supreme Court upheld the validity of Section 63(4) in Pune Bar Association v. Union of India (22 May 2026). The Court described a hash value as an electronic fingerprint, held the certificate requirement rational rather than arbitrary, and clarified that Part B of the Schedule need not be signed only by an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act 2000: a person with special skill and expertise in computer science and cyber forensics can sign if the court is satisfied. This is a real concession, because notified examiners are few and heavily booked.

Key takeaway. A WhatsApp printout or PDF export is computer output under Section 63 BSA. It needs the Schedule certificate: Part A signed by the person in control of the phone, Part B signed by an expert, with the hash value stated.

Secretly recorded chats and calls between spouses: the Vibhor Garg ruling

The next big question in matrimonial practice: can a spouse rely on calls or chats recorded without the other's knowledge? The Supreme Court answered on 14 July 2025 in Vibhor Garg v. Neha, 2025 INSC 829. A husband seeking divorce before the Family Court at Bathinda had filed memory cards, a CD and transcripts of calls recorded without his wife's knowledge. The Family Court received them, the Punjab and Haryana High Court reversed on privacy grounds, and the Supreme Court restored the Family Court's order.

The legal spine of the ruling is Section 122 of the Evidence Act, now Section 128 BSA. The provision protects communications during marriage: a person cannot be compelled, or permitted without consent, to disclose what a spouse said during the marriage. But the section itself carves out an exception for suits between married persons and for proceedings in which one spouse is prosecuted for a crime against the other. The Court held that in litigation between the spouses the exception governs, and the constitutional right to privacy recognised in Justice K.S. Puttaswamy v. Union of India (Supreme Court, nine-judge Bench, 2017) does not override that express statutory exception in that setting.

What the ruling allows is narrower than the headlines suggested. A secretly recorded conversation between spouses can be received in their own matrimonial case, but it must still be relevant, the voices must be identified, and the recording must be shown to be accurate and free of tampering, which loops straight back into the Section 63(4) certificate and hash discipline. We examine the recording question in our guide on recording calls without consent in India.

Common mistake. Reading Vibhor Garg as a licence to tap everyone. The Section 128 BSA exception covers litigation between the spouses themselves; recordings of third parties stand on a different footing, and breaking into another person's phone or account can itself be an offence.

Section 14 of the Family Courts Act: the wider gate

Family Courts hold a statutory relaxation most litigants have never heard of. Section 14 of the Family Courts Act 1984 provides that a Family Court may receive as evidence any report, statement, document, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not it would be otherwise relevant or admissible under the Evidence Act. In Vibhor Garg itself, the Supreme Court noted this discretion while resting its decision on the spousal privilege exception.

In practice, Section 14 lets a Family Court take a bundle of WhatsApp screenshots on record even where the Section 63(4) paperwork is missing. But receiving is not believing. Judges routinely receive material under Section 14 and discount it at final hearing because authenticity was never established, and a decree built on shaky electronic evidence invites attack in appeal. Treat Section 14 as a cushion and still comply with Section 63.

What we see in practice in Bengaluru's family courts is a predictable pattern. Parties file thick bundles of screenshots with no export file, no certificate and no hash. The opposite side stays quiet for months, then attacks the entire bundle in cross-examination or final arguments. Judges, pressed for time, receive the material under Section 14 and quietly give it little weight. The matters where electronic evidence moves the result are the ones where counsel did the boring work early: full export, hash noted, certificate signed, phone preserved and offered for inspection.

How to put WhatsApp chats before the court: step by step

The sequence below is the discipline we follow in contested divorce, cruelty and maintenance matters; our family and divorce law practice page explains how these cases proceed overall.

1. Preserve the device. Keep the phone that holds the chats. Do not factory reset it, sell it or clean up conversations. Deleting inconvenient messages from a thread you rely on is the fastest way to lose credibility.
2. Export the full chat. Use the export chat function to generate the complete thread, with media where possible, instead of curating screenshots. A full export shows sequence and context.
3. Generate hash values. Have the export files hashed (SHA-256 is the common choice) and record the values. The hash ties the file you filed in court to the file the expert examined.
4. Prepare the Section 63(4) certificate. Complete Part A of the Schedule form as the person in control of the phone, and have an expert in computer science or cyber forensics complete Part B. File the certificate along with the record at each instance it is submitted.
5. File with pleadings and the evidence affidavit. Produce the chats with your list of documents and connect each chat to a pleaded fact. Unpleaded surprises attract objections and adjournments.
6. Offer the original for inspection. If authenticity is disputed, produce the phone for inspection by the court or an examiner. Access to the original device is the strongest answer to a forgery plea.
7. Meet objections when they arise. If the other side objects to the certificate or the mode of proof, deal with it immediately; Arjun Panditrao permits courts to call for certificates in appropriate cases rather than shutting the evidence out.

Not all formats are equal. The same conversation can reach the court in five different forms, each with different proof requirements and different exposure to attack:

Pair the formats: screenshots for readability, the certified export for admissibility, and the device itself for authenticity.

Forged chats: how courts test authenticity

Fabricated chats are a live problem in matrimonial cases. Chat export files are plain text and can be edited in any text editor, and screenshot generator tools can produce convincing fake conversations in minutes. Family judges know this, which is why an unsupported printout carries so little weight the moment it is disputed.

Courts test authenticity in layers. They compare the tendered copy against the original device. They check hash values: if the hash recorded at export does not match the file produced, the file has changed. They can send the device or record for forensic examination, to the State Forensic Science Laboratory or a Section 79A notified examiner; in Karnataka those reports can take months, so plan the trial calendar around it. They look at conduct: do the messages fit proven behaviour, does the counterpart phone show the same thread, do the timestamps line up. WhatsApp describes its service as end-to-end encrypted, so do not expect the platform to supply message content later; preservation sits with the parties.

If chats are fabricated in your name, fight on two fronts: challenge them in the family case, and consider a criminal complaint, since creating a false electronic record and using it as genuine invites prosecution under the Bharatiya Nyaya Sanhita 2023 and the Information Technology Act 2000. Our guide on how to report cyber crime in India covers the complaint route and the national portal.

The authenticity toolkit in short:

The limits: privacy, third parties and objection timing

Vibhor Garg does not erase privacy. Puttaswamy remains the law: privacy is a fundamental right under Article 21. The 2025 ruling holds only that, within litigation between spouses, the statutory exception in Section 122 Evidence Act, now Section 128 BSA, controls. Chats and calls of third parties (in-laws, friends, a new partner) are not covered by the spousal exception, and pulling material out of someone else's account without authority can invite prosecution instead of a decree.

On illegally obtained evidence generally, Indian courts have not adopted an automatic exclusionary rule: relevance ordinarily governs admissibility, and the manner of collection goes to weight and the court's discretion. That is a description, not an invitation: hacking accounts hands the other side a ready counter-attack. We have covered the balancing exercise in detail in what courts allow when divorce evidence collides with privacy.

Timing matters as much as substance. An objection that a chat lacks the Section 63(4) certificate should be raised when the record is tendered, so the defect can be examined and, where permissible, cured. Courts have allowed certificates to be supplied or called for while the trial is alive, and appellate courts are slow to entertain admissibility objections raised for the first time after judgment. Equally, do not bank on late repair: the section requires the certificate at each instance the record is submitted.

Deadline warning. Attack a defective chat when it is tendered, not in appeal. If you are the party relying on the chat, file the Section 63(4) certificate with the record at each instance; late repair depends on judicial indulgence.

Frequently Asked Questions

Related Guides

• Family Court Procedure in India
• Hidden Assets in Divorce in India
• Proving Adultery in Divorce
• Recording Calls Without Consent in India