TC -

4th AURO NATIONAL MOOT COURT COMPETITION 2018

BEFORE

THE SUPREME COURT OF NEVERLAND

(UNDER ARTICLE 136 OF CONSTITUTION ON NEVERLAND)

IN THE MATTER OF

STEPHANIE & OTHERS…………………………..……………….. PETITIONER

v.

STEVE ROGERS……………………….…………………RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

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 TABLE OF CONTENTS

Index of authorities……………………………………………………………3

Statement of Jurisdiction……………………………………………………..4

Statement of facts……………………………………………………………..5

Statement of Issues……………………………………………………………14

Arguments advanced…………………………………………………………..15

Prayer……………………………………………………………………….…23

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 INDEX OF AUTHORITIES

Sr. No. Name of the cases Citation

1. Anvar v. Basheer 2014 SCC SC 732

2. Dinesh Dutt Joshi v. State of Rajasthan 2001 8 SCC 570

3. Jayachandra vs. Aneel Kaur SC 2004

4. P. (S.E.) v. P. (D.D) 2005 BCSC 1290
5. Sobha Rani v. Madhukar Reddi , 1988 AIR, 121

6 Yusufalli Esmail Nagree v. State of Maharashtra , AIR 1968 SC 147

BOOKS AND STATUTES REFERRED :

 Principles Of Hindu Law – Sir Dinshah Fardunji Mulla

 The Indian Evidence Act, 1872
 IT Act, 2000

ARTICLE REFERRED:

 The Hindu, “wife’s mental cruelty ground for divorce”,( SEP 27,2016),

STATEMENT OF JURISDICTION

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The Petitioners (Stephanie, Government of Neverland & Infinity foiled) has approached the
Hon’ble Supreme Court under Article-136 of the Constitution of Neverland.

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of Neverland.

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

STATEMENTS OF FACTS

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It was 9’o clock on a Sunday night, 27th November 2016, when a journalist named Logan came
upon the scoop of his life. The 45-year-old, in his pyjamas at this hour, was sitting in his home at
Gotham, a city in the country Neverland.
Neverland is a pluralistic society. In Neverland, religious scriptures, traditions as well as
customary practices determine the ways of living. All aspects of life including marriage, divorce,
succession, adoption, and even trading transactions were extensively dealt with by these
scriptures and practices. Communities which differed on grounds of religion, caste, and creed, all
lived together. Neverland had been colonised for over 200 years which had led to a change in
their original ways of living and acting – ‘law became a guiding light for them’. Nevertheless,
the scriptures and religious practices continued to have an upper hand over law.
For years Logan had been writing a popular blog about internet security, analysing threats of
consumer data from big companies around the world. As his weekend came to an end, Logan
was tipped off about a more sensational breach: an anonymous informant had emailed him a list
of links, directing him to caches of data that had been stolen from servers at an Neverland
Firm called FML (Fevid Media Life). FML is a registered company under the Companies Act,
2013. It ran a notorious, widely publicized web service called ‘Affinity Foiled’, a dating site
since 2010, with an explicitly admitted intention of helping married people have affairs with
each other. “Life is short, have an affair”, was the slogan used by ‘Affinity Foiled’.
When Logan received his tip off, ‘Affinity Foiled’ claimed to have a membership of 20 lakhs, all
of them assured that the use of this service would be “anonymous”, “100% discreet”. Only that
Logan, and everyone in possession of the cache of data was now looking at the real names and
credit card details of ‘Affinity Foiled’ members. He was looking at street addresses and postal
codes, and the contacts made by members to other members, thus disclosing potential affairs
between identifiable persons. Logan found a list of phone numbers of senior executives of
‘Affinity Foiled’; the personal number of even the CEO, Bruce Wayne, was listed.
A few hours later, in the west of Neverland, a contentedly married man, Steve Rogers woke up
and went through his mundane morning routine, coffee, email, skimming through the news
online.
Steve is a renowned lawyer working in the Supreme Court of Neverland. He got married to
Stephanie Hunt in 2006 under the Hindu Marriage Act. Stephanie is an artist and a social worker

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who works with an NGO ‘Justice League’. Justice League works for the welfare of women.
Stephanie earns a considerable amount by exhibiting and selling her paintings and donates much
of her earnings to the NGO she works with.
Steve and Stephanie had met while pursuing higher education at the University of Neverland,
although they were in different departments. They got acquainted to each other during events
held at the University; they developed a mutual liking. As they began to know each other more,
their liking changed to love. After graduating they started to live-in. They got married to each
other after living-in for seven years, excluding their college relationship of four years. They were
Hindus but believed that societal traditions and customs were obsolete. Their thinking was
modern and not traditional. Therefore, when Rogers’ parents asked for a grandchild they tried to
evade the conversations since they both were not interested in being burdened with parental
responsibilities at this point in their careers.
Logan’s story about a hack of servers at ‘Affinity Foiled’ had been quickly picked up by
prominent media agencies. It was a lead item on every news page that Rogers browsed while
skimming through the news that morning. “Infidelity site hacked”, he read; a group calling itself
the Impact Team claimed responsibility and threatened to release a full database of customers of
‘Affinity Foiled’. More than 15 lakh people all over Neverland were affected. Rogers could say
that there were many authentic adulterers who used the site because he was one of them. Rogers
said that he’d taken some elementary precautions. He’d registered on ‘Affinity Foiled’ with a
secret email address and chosen a username ‘Captain America’ through which he could not be
personally identified. He had uploaded a photograph though because he had enough knowledge
about adultery websites to know that “if you don’t put a photo up you won’t get many
responses”. But the picture he had chosen was small in size and he was wearing sunglasses in it.
Whenever Rogers used to visit the site he used to be very careful. If he wanted to log on to
‘Affinity Foiled’ to talk to women he would only do so on a work laptop he kept in his office
which was in his home. Rogers had installed six internet browsers on the laptop, and one of these
browsers could only be loaded via an external hard drive – and this was the browser he used to
arrange his online affairs. This browser functioned much like the Tor, and it would ping his IP
address through a host of masking proxies, so that the original IP address is never logged in the
access database of the website he visits. So, Rogers was irritated and surprised to realise on that
Monday morning, that his elaborate precautions had been pointless. He tried to think of ways in

6
which he could be exposed if the hackers went through with their threat to release ‘Affinity
Foiled’s’ customer database.
Subscriptions to the site were arranged so that women could use the service for free while men
needed to pay a monthly fee. This was meant, in theory, to encourage more women to register
and thus ensure a balance in the membership numbers. Rogers had joined ‘Affinity Foiled’ after
reading about it in a newspaper. He recalled getting a deal as a new signee in December, 2015,
and being charged something like ₹500 for his first month. He used his credit card to pay. The
profile name and email address he’d chosen were no threat, and the photograph deniable too,
“but your credit card,” Rogers realised, “is your credit card.” At this time a lot many men across
Neverland were probably thinking the same thing – your credit card is your credit card!
On 12 January, 2017, ‘Affinity Foiled’s’ entire customer database was indeed put online.
Politicians, pundits, military members, civil servants, celebrities – these and hundreds of other
public figures were found listed on the membership list. Thousands of formerly anonymous men,
suddenly had their private details spilled out on the internet. Details varied according to the
caution an individual had exercised when signing up to the site, and to their luck, owing to their
gender, men were more exposed because of ‘Affinity Foiled’s’ requirement that they use their
credit card to make the payments.
Logan, with some prescience, wrote a blog advising sensitivity: “There’s a very real chance that
people are going to overreact,” he wrote. “I wouldn’t be surprised if we saw people taking their
lives because of this.”
A few suicides were reported. Peter Parker a pundit in Louisiana and friend of Rogers was
amongst them. Speaking to the media after his death, Peter’s wife said that he had discovered his
name on the list before he killed himself. She said she would have forgiven her husband, and so
too would have God. “God’s grace in the midst of shame is the centre of the story for us, not the
hack. My husband knew that grace, but somehow forgot that it was his when he took his own
life.”
During the early weeks of the crisis FML, the company behind ‘Affinity Foiled’, stopped
responding in any sort of adequate way to calls and emails from its terrified customers, including
from Rogers. Countless marriages were at risk, relations at stake, and parentage of children in
question; and people teetered on appalling decisions. FML made superficial adjustments to the

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homepage of its website, at some point deciding to remove the graphic that described ‘Affinity
Foiled’ as “100% discreet”.
Consequently, the masses who were sent spinning by the leak could not turn to FML for advice.
Most of them could not easily turn to their partners either. Someone had to fill this enormous
absence, hear out the grievances. Tony Stark, a mild-mannered technology consultant from
Krypton, a city in Neverland, had not expected it would be him. Tony, who is in his late 30s, has
his expertise in internet security; he teaches courses in it. As a side project, since 2013, he has
run a free web service, Himtoo.com, that allows concerned citizens of the internet to enter their
email addresses, go through a simple process of verification, and then learn whether their
personal information has ever been stolen or otherwise exposed in a data breach.
Only this time, Tony recalled, desperate, difficult and extremely personal messages began
arriving in his inbox almost immediately after the leak. Mostly there were men who emailed him
– the paying customers of ‘Affinity Foiled’ who erroneously believed that Tony, having sifted
through the leaked data, might be able to help them. Could he somehow scrub their credit cards
from the list? Tony described the tone of these emails as fearful, illogical, and “emotionally
distraught”.
Rogers confessed to Tony his reasons for subscribing to ‘Affinity Foiled’ in the first place: “I
joined ‘Affinity Foiled’ one night bored, honestly… Curiosity…” He volunteered to him what
he’d done, or nearly done, or hadn’t done at all. He described what it was like to learn about the
leak: “The worst morning of my life… sheer fear… sick and foolish… I can’t work or eat or
sleep and on top of that I am trying to hide the fact that something is wrong from my wife…” He
pleaded to Tony who could do nothing for him. He apologised to him, a stranger. He wondered if
he should admit everything to his wife and the people who mattered to him, and he wondered
what that might cost him.
Then there was the jarring moralising tone in the messages the Impact Team put out: “Learn your
lesson and make amends, live by our Great Country’s Ideals” was the Team’s advice to the
affected users of ‘Affinity Foiled’s’ who were left devastated by its leak. Impact Team said it
wanted to stop the users of ‘Affinity Foiled’ because what they were doing was immoral and
went against Neverland’s traditions, practices and scriptures. Members and former members of
‘Affinity Foiled’ began to receive anonymous extortion letters. Rogers received several: “Pay us
in seven days”, he was threatened in one email, “or you know what will happen! You can inform

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authorities but they can’t help you. We are professionals.” Rogers was unnerved by the emails
but ignored them. The world, in small increments, got shabbier.
The various blogs written by Logan, stirred interest of one and all into the leaks. One hacker
named AFLolz had spent hours and hours digging through ‘Affinity Foiled’s database after the
leak, going out of his way to draw attention to his most salacious findings. He made some of the
findings that he’d subsequently publicized through an AFLolz Twitter feed and an AFLolz
website. He noted with some pride that in one of his deep searches he’d come across emails that
suggested members of ‘Affinity Foiled’s staff were themselves having extramarital affairs. He
posted screenshots of incriminating personal messages, and several magazines and newspapers
picked up on his findings and ran stories. That night Rogers found that screenshots from his
secret name Captain America’s profile had also come up.
AFLolz might not have been involved in the ‘Affinity Foiled’ hack, but he was certainly
involved in giving it an impactful afterlife. He was asked what had motivated him –
Disapproval? Revenge?
“Because it was very humorous,” he said eventually. “And very interesting. No mission
statement, just looking for ‘lols’.”
As he sat in his home office, reading developments about the ‘Affinity Foiled’ hack on the news
sites, Rogers wondered if his wife was doing the same; he was keenly aware of his own
culpability. He did not think he had anyone else to blame but himself. Who was he really going
to blame? ‘Affinity Foiled’? “I think it would probably be a little naive of me to expect high
standards from a company that was promoting itself as a meeting point for people looking for
adulterous affairs. It’s a bit like lending money to your drug dealer and expecting him to pay it
back.” Rogers simply accepted what was going on and watched, with a numb fascination, as the
crisis rolled on.
Rogers’s situation was complex and real. As life partners, he and his wife fit really well. They
were very good friends. They used to go out together on dates whenever they got time from their
busy schedules. They performed their religious duties together. They used to socialise together.
They used to visit each other’s parents as well as take care of each other’s needs. They were
living a happy life together. But still Rogers felt there was a missing dimension in their
relationship. Over all these years they had become good partners but the element of love had got

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lost somewhere. ‘Affinity Foiled’ had been Rogers’ way to try to account for that missing
dimension. It was not always, a particularly satisfying way though.
He wasn’t even sure that every woman he had spoken to during his time on the site was genuine.
Sometimes, when the conversation had a flavour of “classic soft porn”, he had wondered if his
correspondents were employees of the company, typing out standard stuff from scripts.
The likely truth, as suggested by internal documentation made available by the leak, was even
stranger. Coders at ‘Affinity Foiled’ had created a network of fake, flirtatious chatbots to
converse with men like Rogers, teasing them into maintaining their subscriptions with the site. It
was for this reason that commentators began to doubt whether ‘Affinity Foiled’ had as many
subscribers as they advertised, though Fevid Media Life, ever since the leak, claimed to have a
healthy and even growing user base.
However, Rogers had been corresponding online with someone real through ‘Affinity Foiled’.
Like him, she too was in a stable companionable marriage, lacking only a certain dimension. She
lived in the north of Neverland; she had children. She and Rogers shared tastes in books and
spoke a lot on the phone too but they had never met in person. Sometimes they discussed their
partners and their respective marriages, other times they steered from the subject. There was a
sexual element to the affair, Rogers said, but they had never slept together. It was a relationship
that was valuable to Rogers.
“If you’re going to chat a woman up in a bar, or at a work conference, or wherever,” Rogers had
told his friend Peter, “then: ‘Hello, I’m married’ is not a good opening line. Whereas if you’re
going on to a website like ‘Affinity Foiled’– they already know. It’s a bit ridiculous to talk about
honesty in terms of these relationships. But they actually start with honesty. Because you’re not
pretending to be something you’re not.”
‘Affinity Foiled’ was thought of by Rogers like many others, as a way of having a “safe affair” –
safe in the sense that he did not think it likely that he’d be found out by his wife; he had his
special browser, his secret email ID. It was also safe in the sense that he didn’t think anyone
would get hurt. Since the leak happened, Rogers had not used ‘Affinity Foiled’ nor spoken to the
woman who stayed in northern Neverland. His wife, as of February 2017, found out about his
affairs and had a talk about it with her friend Jarvis who was working in the NGO with her.
Stephanie and Jarvis discussed the problem and after a long discussion and debate thought about
the problem from a larger perspective. Stephanie even told Jarvis about Peter’s suicide; she told

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her about the threat to commit suicide that she received from Rogers when she had confronted
him by telling him that she would leave him. But it was not just Stephanie who had suffered this;
other married couples have suffered as well.
However, after thinking over the issue, Stephanie decided to go ahead and file for a divorce in
the lower court; on the basis of the evidence of the leaked chats by AFLolz amounting to cruelty
and on the ground of infidelity, the lower court granted her divorce.
An appeal was filed by Steve Rogers in the High Court, which challenged the decision of lower
court of granting divorce on the ground of considering the hacked chats as valid evidence since
essentially these were actions done in private sphere of life, and their public access was a
violation of his right to a private life. He also filed a writ petition for a mandamus directing the
Government to take down the servers hosting, flashing or re-publishing the leaked data.
Considering the plea, the High Court first granted the mandamus, and then also reversed the
judgement of lower court and declared that divorce would not be granted and the hacked chats
were unethically extracted, and contained amorous content serving prurient interests, and were
therefore non-est in the eyes of law, and could not be considered as valid evidence.

An Appeal by Special Leave is now filed in Supreme Court by Stephanie, challenging the High
Court decision on the validity of evidence presented in the lower court. She also wrote to the
Attorney General to challenge the decision in the writ petition, which was acceded to and the
Government of Neverland also filed an Appeal by Special Leave challenging the decision in the
Writ Petition.
In a parallel move, Steve Rogers sued ‘Affinity Foiled’ for damages. The lower court ruled in his
favour on the basis that there was a contract for consideration, to keep the information
confidential; the court ordered damages to be paid to Rogers by Affinity Foiled.
‘Affinity Foiled’ filed an appeal to the High Court against the decision of the lower court relying
on the judgment in Writ Petition that “amorous purposes would not lead to valid contracts” and
the consideration paid was for doing something illegal and hence it was a void contract. The
High Court however disagreed with this obiter from the previous decision, and upheld the order
of the lower court saying that first, the contract was enforceable, and from another viewpoint,
‘Affinity Foiled’ had every reason to protect private information received in a fiduciary capacity,
even without a contract, and thus ‘Affinity Foiled’ was liable to pay the damages.

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Aggrieved by the judgment of the High Court, ‘Affinity Foiled’ filed an appeal in the Supreme
Court challenging the decision of High Court.
Considering the issues at hand, both these petitions were clubbed together under the Supreme
Court Rules, 2013 and the Supreme Court decided to hear the matter in March 2018. The laws of
Neverland are pari materia to the laws of India. In addition, the EU law on Privacy and Data
Confidentiality is treated to be enforceable so long as it is not in conflict with the laws of
Neverland.

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 STATEMET OF ISSUES

ISSUE 1: Can internet infidelity amount to the cruelty and adultery as ground for divorce
filed by Stephanie?
ISSUE 2: Should the hacked internet chats by AFLolz be considered as relevant
evidences?
ISSUE 3: Can High court grant a mandamus seeking removal of hacked data from
website?
ISSUE 4: Can compensation claim made against a non-state entitiy only in an enforceable
contract or under a common law as well?

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 ARGUMENT ADVANCED

ISSUE 1: Can internet infidelity amount to the cruelty and adultery as ground for divorce
filed by Stephanie?
It is most humbly and respectfully submitted before the Honorable Supreme court that internet
infidelity does not amount to the cruelty and adultery as ground for divorce. Petitioner1
(Stephanie) is wrong in filling the divorce on the ground of adultery and cruelty because as the
facts suggest the act of the respondent is not sufficient or does not constitute essentials of
adultery.
The adultery is defined in section 497 of Indian Penal Code (IPC):
“Whoever has sexual intercourse with a person who is and whom he knows, or has reason to
believe to be the wife of another man, without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and
shall be punished with imprisonment of either description for a term which may extend to five
years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

As the definition of adultery is given, sexual intercourse is the most important ingredient of
adultery and the act of sexual intercourse was never committed by the respondent. So, as the
matter of fact and law is concerned, in this case adultery cannot be the ground for divorce filled
by the petitioner.
One of the essential element od adultery is sexual intercourse. Adultery presupposes a carnal
union between man and woman. Mere attempt to sexual intercourse will not amount to adultery.1
In the given case, facts clearly states that respondent did not met in the person with the lady he
used to chat. Respondent was a man of good character, being a lawyer of Supreme court, he is
prudent enough that he cannot commit such crimes, so the divorce filled on the grounds of
adultery and cruelty is wrong. He did not had any sexual intercourse with anyone so no adultery
was committed y the respondent.
Honorable court should draw attention to the fact that respondent said he never slept with that
lady he used to chat with so, petitioner in filing divorce on ground of adultery is wrong.

1
Dennis v. Dennis, 1955 P 153; Subramma v. Saraswati, 1966 2 MLJ 263.

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The burden of proof that the respondent committed adultery is on the petitioner who must prove
it beyond reasonable doubt2. Mere statement of the petitioning spouse is not enough; it must be
corroborated.3 The circumstance should be such as regarded together, they lead to irresistible
conclusion of commission of adultery.4
In the present case there is no such circumstance which can lead to the proof of adultery against
the respondent. Mere chatting will not prove adultery and without any substantive ground the
decree of divorce cannot be passed by the honorable court.
Historically, Canada’s Divorce Act defined adultery along the same lines as the former definition
of “spouses”, which involved only people of the opposite sex. Adultery was similarly defined by
the courts as consisting of voluntary sex outside of marriage, between a spouse and someone of
the opposite gender.

This statement by the Canadian law also proves that adultery means having voluntary sex outside
marriage so from the given facts it can be concluded that there was no voluntary sex between the
respondent and the lady with whom he used to chat.

Infidelity that too over internet cannot be a ground for divorce.  For the grounds for divorce the
accusation of incest and illicit sexual relationship should be substantially proved or else the
ignominy the respondent would have been subjected to would have a worse impact resulting into
dismissal of the petition for divorce.5

Cruelty means inhuman behavior, the intentional infliction of physical or mental distress.
It is hubly submitted before the honorable supreme court that respondent never did any act which
were inhuman and he never ad the intention of inflicting injuries. If we talk about the cruelty the
major emphasize is out on physical cruelty rather than mental cruelty and the present case there
was no instances of the intention of the respondent of inflicting any physical injuries to the
petitioner.
If we talk about the mental cruelty then also there are no instances which shows that respondent
committed any act of mental cruelty. Merely a chat will not amount to cruelty, where a husband
is engaged in chats in his leisure hours it won’t be leading to any ground for divorce.
2
Bipin v. Prabha, AIR 1957 SC 176; White v. White, AIR 1958 SC 441.
3
Sulekha v. kamalkant, AIR 1980 Cal 370.
4
Tripathi v. Bimal, AIR 1957 J&K 72; Subhramma v. Saraswati, 1966 2 MLJ 263.
5
Jayachandra vs. Aneel Kaur SC 2004

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If a husband is engaged in chatting continuously without earning money for livelihood, giving
time to his wife can be considered as cruelty but from the given fact honorable court can
evidently draw that respondent never did anything which can ever amount to cruelty, they both
used to go out together. Respondent used to visit to her parents as well as took care to them. He
always accompanied appellant wherever she wanted to go. They performed religious activity
together and they really fir well .

Anything given in the definition of cruelty6 is not complying with the facts of the cases so it is
clear that no cruelty was done by the respondent to the appellant. In the fact it is never mentioned
that petitioner was mentally facing any challenges in her married life.

The Supreme Court’s judge KS Radhakrishanan and PC Ghose ruled that adultery does not

amount to mental cruelty per se runs the risk of treading a fine line between being seemingly

progressive, and terribly detached from reality7.

The above case states that adultery does not amount to cruelty and in our case Respondent is not

even guilty of adultery so this directly implies that he is not guilty of cruelty either. The adultery

includes the sexual intercourse between the male and female but in the given case facts

suggested that respondent used to chat and talk in the phone which do not constitute adultery.

To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to
the conclusion that the petitioner spouse cannot be reasonably expected to live with the other
spouse. It must be something more serious than "ordinary wear and tear of married life".8

Further acts of cruelty have to be distinguished from the ordinary wear and tear of the married
life9.

6
Section 498, Indian Penal Code,1860

7
Dinesh Dutt Joshi Vs. State Of Rajasthan, 2001 8 SCC 570

8
The Hindu, “wife’s mental cruelty ground for divorce”,( SEP 27,2016), http://www.thehindu.com/todays-
paper/tp-national/%60%60Wifes-mental-cruelty-ground-for-divorce/article14724397.ece
9
Savita Pandey v. Prem Chand Pandey, AIR 2002 SC 591

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 The conduct, taking into consideration the circumstances and background has to be examined to
reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial
law. Conduct has to be considered, as noted above, in the background of several factors such as
social status of parties, their education, physical and mental conditions, customs and traditions. It
is difficult to lay down a precise definition or to give exhaustive description of the
circumstances, which would constitute cruelty.10

In the given case the conduct of the respondent was never grave and weighty so as to term that
act as cruelty. Respondent cannot to subjected to the act of cruelty. There were no such
circumstances and background which could create the situation of cruelty by the respondent.

In case of mental cruelty the issue of mere chatting is not appropriate and Lord Danning said if
the doors of cruelty were opened too wide, we should soon find ourselves granting divorce for
incompatibility of temperament.11

The honorable court is correct in its words because in modern time every other person files
divorce petition on inappropriate ground so it shoud be noted that nothing in the law it is given
that chatting amount to cruelty its an inappropriate ground. Decree of divorce shall not be
granted unless found justified grounds for divorce.12

Cruelty to be a ground for divorce must be of such character as would have entitled the wife to a
judicial separation. Under Section 22 of the Act there is bar to decree for divorce a mensa et toro,
but judicial separation is obtainable by husband or wife on ground of cruelty. In the case of P.
(S.E.) v. P. (D.D.) the court defined adultery as intimate sexual activity outside of marriage,
regardless of the specific nature of the sexual act performed. Cyber-sex or sexting, however,
while obviously emotionally devastating to the other spouse or partner, does not reach the level
of intimacy necessary for it to function as adultery under the Divorce Act. This means that a

10
Sobha Rani v. Madhukar Reddi , 1988 AIR, 121
11
Kalsfaky v. kalsfaky, 1950 2 All ER 398 at 430
12
Mrs. Nidhi Kakkar vs. Munish Kakkar PHHC, 2011

17
person who seeks to divorce someone on the basis of their virtual infidelity must first separate
from their partner and live separate and apart for one full year13

From the view point of law chatting do not amount to adultery. So the internet infidelity does not
amount to adultery and cruelty as ground for divorce filed by petitioner.

In case of mental cruelty the issue of mere chatting is not appropriate and Lord Danning said if
the doors of cruelty were opened too wide, we should soon find ourselves granting divorce for
incompatibility of temperament.14

13
. P. (S.E.) v. P. (D.D.), 2005 BCSC 1290

14
Kalsfaky v. kalsfaky, 1950 2 All ER 398 at 430

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ISSUE 2: Should the hacked internet chats by AFLolz be considered as a relevant
evidence?

It is humbly submitted before the honorable supreme court that the hacked data by AFLolz
should not be considered as relevant evidence in the eyes of court because before considering
such chats it should be the responsibility of the court to check the authentication of the
evidences.

Before offering evidence in a proceeding, the party offering the evidence must first prove the
evidence is what it purports to be through a process called authentication. Without evidence
establishing the true identity of the party behind the chat, the chat record itself may
be inadmissible hearsay evidence. There have been many occasions in which an Indian Court
had to debate whether an evidence can be admitted when it is brought to its notice that the
evidence was obtained illegally. Most of these cases in the past have arisen on account of the
Government tapping the telephone conversations and it has been challenged either as “Improper”
or “Illegal”.

The Supreme Court observed, that since the tape - records are prone to tampering, the time, place
and accuracy of the recording must be proved by a competent witness. It is necessary that such
evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt
that the record has not been tampered with.15

Illegality arises when the person has obtained an evidence by deceit, stealing or in the case of
Cyber Evidence, by “hacking”. Impropriety may arise when there was a legal means and a
procedure for collection of evidence which was not followed. Obviously, it is easy to assume that
“Procedural Irregularities” can be condoned but human rights activists often raise objection when
evidence has been obtained through illegal means.

So the courts states that whatever evidences which has been obtained through illegal means
cannot be admissible in the court and in the eyes of law.

15
Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147

19
The opposition to the Courts accepting an illegally obtained evidence stems from the fact that it
may violate the “Constitution of India”, the “Right to Privacy”.

AFLolz unethically hacked the data and published on the website, it is not sure that the same
hacked data would have been published because in many instances we can see that the hacked
data is being tampered and then published for unlawful object through unlawful means.

However, a series of Indian judicial decisions have held that an evidence is admitted if it
is “relevant” though it was obtained improperly or illegally. The court on this issue should
critically look in the matter of the fact that AFLoz hacked the data and hacking is already a crime
under IPC.

Though under the obligation of the court to give chance to provide the evidence , the chats and
emails can comply but as per section 88A of Evidence Act, 1872, the court shall not make any
presumption as to person by whom such messages are sent.

Section 88A: Presumption as to electronic messages.—The Court may presume that an electronic
message, forwarded by the originator through an electronic mail server to the addressee to whom
the message purports to be addressed corresponds with the message as fed into his computer for
transmission; but the Court shall not make any presumption as to the person by whom such
message was sent16

According to law the court cannot presume that those messages which are already unethically
hacked by AFLlolz are sent by the respondent because section 88A of Evidence Act states the
same. Court has the duty to allow evidences in the court but also has the responsibility to check
the authentication of that evidence as per Evidence Act,1872. Also, the court id not bound to
accept it.

On the question of the defence’s challenge to the authenticity and accuracy of certain call data
records (CDRs) that the prosecution relied on, which were purported to be reproductions of the
original electronically stored records, a Division Bench of Justice P. Venkatarama Reddi and
16
The Indian Evidence Act, 1872

20
Justice P.P. Naolekar held that According to Section 63, secondary evidence means and includes,
among other things, copies made from the original by mechanical processes which in themselves
ensure the accuracy of the copy, and copies compared with such copies.17

According to the judgment given, the aggrieved party should admit that the produced evidences
are correct but in the given case the respondent never approved that it was his chats, therefore
the evidence cannot be considered unless that person himself admits it. And even the process of
authentication was not followed in this case.

In the recent judgment pronounced by Hon’ble High Court of Delhi, while dealing with the
admissibility of intercepted telephone call in a CD and CDR which were without a certificate u/s
65B Evidence Act, the court observed that the secondary electronic evidence without certificate
u/s 65B Evidence Act is inadmissible and cannot be looked into by the court for any purpose
whatsoever.18

There was an appeal against conviction following the attack on Parliament on December 13

2001. This case dealt with the proof and admissibility of mobile telephone call records. While

considering the appeal against the accused for attacking Parliament, a submission was made on

behalf of the accused that no reliance could be placed on the mobile telephone call records,

because the prosecution had failed to produce the relevant certificate under Section 65-B(4) of

the Evidence Act. The Supreme Court concluded that a cross-examination of the competent

witness acquainted with the functioning of the computer during the relevant time and the manner

in which the printouts of the call records were taken was sufficient to prove the call records.19

In the present case no such authentication certificate was given to the hacked chats so this clearly
proves that these hacked chats by AFLolz can be relevant in front of the honorable court.
17
Anvar v. Basheer, 2014 SC 432
18
 Jagdeo Singh Vs. The State and Ors, AIR 2016
19
State (NCT of Delhi) V. Navjot Sandhu AIR 200, SC 3820

21
The Supreme Court has reiterated that any electronic record in the form of secondary evidence
cannot be admitted in evidence unless a certificate under Section 65B (4) of the Evidence Act is
produced20

A two judge bench of the Supreme Court, comprising of Justice L. Nageswara Rao and Justice
SA Bobde, upheld that  for proving the guilt of the accused beyond reasonable doubt and being
relied upon by the prosecution, should be eschewed/disregarded from consideration as they were
inadmissible, for non-compliance with the requirements under Section 65-B of the Indian
Evidence Act, 1872 ("Evidence Act") as admittedly they were not certified in accordance with
sub-section (4) of section 65-B. The accused placed strong reliance on the three judge bench
decision of the Supreme Court in Anvar P.V. v P.K. Basheer by which the Supreme Court held
in unequivocal terms that an electronic record by way of secondary evidence shall not
beadmissible as evidence unless the requirements of Section 65-B are satisfied.21

Also this should be noted that petitioner had raised such an important issue fro admitting the
hacked chats as relevant data so petitioner should have provided the court with the certificate
under section 65B of IT Act, but petitioner failed in doing so, this clearly means that no such
evidence can be relevant and admissible in the court

Also, in the given case AFLolz is punishable under the section 66 22 of the act because he hacked
the data and not only hacked but also used it against the respondent which violated the
fundamental right of “Right to Privacy” of the respondent, which is provided in the constitution
of Neverland itself.

The constitution of Neverland guarantees Right to privacy which provides the right to everyone
to live without the interference by anyone, but in the given case the situation is not the same as
respondent’s right to privacy is being violated by AFLolz, it is the private sphere of respondent’s
life that with whom he wants to chat making it public affair isn’t coorect this clearly violates the

20
HarpaL Singh Chhota V. State of Punjab, 2017 1 SCC 734
21
Sonu v. State of Haryana, SCC 2017
22
Information technology act, 2000

22
fundamental right of right to privacy, this matter should be dealt in the closed sphere among
respondet and his wife no involvement of third party should be there but republishing those
hacked chats by the AFLolz is a crime and it is not ethical.

AFLolz also gave the statement that he did hack the chats because he was “just looking for
‘lols’.” This clearly proves that AFLloz is not a prudent man. The court should draw its attention
to the fact that just because of this whole scenario Peter, a friend of respondent had committed
suicide. And like peter many news of the suicide was reported after such incident so the court
should draw its attention to the fact that mere just for the relevancy on these hacked chats can
lead to the danger upon the life of many people, so court should not take these hacked chats into
consideration for the relevant evidence.

Thus right to privacy is coming under the expended ambit of article 21 of Indian constitution. So
whenever there is some cyber crime which is related to the persons private property or its
personal stuff then the accused can be charged of violation of article 21 of Indian constitution,
and prescribed remedy can be invoked against the accused.

So, it is again humbly and most respectfully prayed that the hacked chats of AFLolz should not
be considered as a relevant evidence.

23
ISSUE 3: Should High court grant a mandamus seeking removal of data from websites?.

It is most humbly and respectfully submitted in the Hon’ble court that, A very significant aspect
of the Indian constitution is the jurisdiction it confers on the High Court to issue writs. Through
writs, the High Courts are able to control, to some extent, the administrative authorities in the
modern administrative age. The writ system provides an expeditious and less expensive remedy
than any other remedy available through the normal Court-process..

Under Art.226(1)23, a High Court is empowered to issue directions, orders or writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of a
Fundamental right and for any other purpose. High Court exercise discretionary and equitable
jurisdiction under Art. 226.24 The power of High Court to entertain a petition under Art. 226 is an
original power whereas the power of Supreme Court while entertaining an appeal under Art. 136
is an appellate power.25 The jurisdiction thus conferred on a High Court is to protect not only the
Fundamental Rights but even any other legal right as is clear from the words ‘any other purpose’.

High court has all the discretionary power to issue mandamus in case if the fundamental right of
a person is being violated, here in the given case the fundamental right of ‘right to privacy’
which is mentioned in the part iii of the constitution of Neverland is being violated so here it is
correct and within the constitutional ambit of the High court to issue writ.

However, after the Constitution every High Court has been conferred with the power to issue
writs under Article 226 and these are original proceeding.26

The great advantage of Art.226 is that its scope cannot be curtailed or whittled down by
legislation. The jurisdiction of High Court under Art. 226 cannot be taken away by any
legislation. Even when the Legislature declares the action or decision of any authority final, any

23
Constitution of India
24
U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon (2008) 2 SCC 41, Secretary, ONGC Ltd. v. V.U. Warrier
(2005) 5 SCC 245, Indian overseas Bank,Annasalai v. P. Ganesan, (2008) 1 SCC 650
25
State of Orissa v. Gokulananda Jena, (2003) 6 SCC 465
26
State of U.P. and others vs. Dr. Vijay Anand Maharaj , AIR 1963,SC 946

24
ordinary jurisdiction of the court is barred, a High Court is still entitled to exercise its writ
jurisdiction which remains unaffected by legislation.27

Hacked chats contained the private messages of respondent and it was unethically used by the
AFLloz and likewise it can be used by anyone which straight away which violated the
fundamental right of the respondent.

There can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be
curtailed. The writ jurisdictions exercised by the Supreme Court under article 32 and by the high
courts under article 226, for the enforcement of fundamental rights are mandatory and not
discretionary. But the writ jurisdiction of high courts for 'any other purpose' is discretionary. In
that sense the writ jurisdiction of high courts are of a very intrinsic nature. Hence high courts
have the great responsibility of exercising this jurisdiction strictly in accordance with judicial
considerations and well-established principles. 

Here in the present case the conservation of the Fundamental rights is very important and the
court shall safeguard all such right. Unless and until the data will be removed from the website
the violation of the fundamental right of right to privacy will continue, not only the respondent’s
but the private information of thousands of people is displayed on the website which anyone can
easily see and use it for wrongful purpose this way fundamental right of many people is being
violated. Removal of data is very important in order to safeguard the fundamental right of a
person and this can be done only if High court grant mandamus for the removal of data.

There is an extraordinary situation which has to be dealt by the high court because there is threat
to many of the lives which directly violates the Fundamental right of right to life.

Also if we look upon the criminal charges the charge of defamation has to be charged upon the
AFLolz he insulted the respondent in the social media where everyone can access the data and
the information put over the site. According to the definition of defamation 28AFLolz has harmed
the image of respondent so he is liable of the charges of Defamantion.

27
Sajjan singh v. State of Rajasthan, AIR 1965 SC 845; Custodian, Evacuee Property v. Jafran Begum, AIR 1968
SC 169; Kartarsingh v. State of Punjab (1994) 3 SCC 569
28
Section 499, Indian Penal Code, 1860

25
It has been disputed many times that high court can not grant writ petition if the alternate remedy
is available also High Court has always the discretion to refuse to grant such a relief in certain
circumstances even though a legal right might have been infringed. Availability of an alternative
remedy is one of such considerations which the High Court may take into account to refuse to
exercise its jurisdiction. But is should be noted that there are many cases in front of high court
and supreme court that even if there is alternative remedy available then also in the case of
infringement of fundamental right high court with all the powers can grant the writ petition.

Likewise, the existence of an alternative remedy is not an absolute bar to the issue of a writ of
certiorari and a writ of mandamus would not be refused merely because the assessee could have
filed a suit The Supreme Court held that Article 226 is not meant to short-circuit or circumvent
statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the
demands of extraordinary situations, as for instance where the vires of the statute is in question
or where private or public wrongs are inextricably linked and the prevention of public injury and
the vindication of public justice require it, that recourse may be had to Article 226 of the
Constitution29

Here in the present case also the personal data of thousands of the people was hacked and there
married life was in danger, if the married life of respondent only was in danger and at the verge
of breaking then it would have been considered as an ordinary situation but in the present case
thousands of people’s married life is in danger which constitutes extraordinary situation so it is
essential for the high court to grant writ petition. Also the news of many people committing
suicide is very serious issue, threat to someone’s life is grave violation of fundamental right at
large. In the present case peter died due to this incident honorable high court should take into
consideration that there is high probability that many people including respondent would commit
suicide just because of these hacked data which are still present on the website.

The whole above mentioned explanation constitutes that it is an extraordinary situation and high
court should grant mandamus seeking removal of the data from the website. High court can grant
mandamus where the alternative remedy would not be equally efficacious 30 and where the

29
Collector of Central Excise v. Dunlop India Ltd, 1985 AIR 330
30
Collector of customs v. Bava, AIR 1968 SC 13 (15); Abool v. Shantilal, AIR 1966 SC (202)

26
alternative remedy would involve inordinate delay 31 also where a constitutional question is
involved, as a distinguished from a mere question of fact32

That the relief under Article 226 of the Constitution of India can be granted in spite of the
availability of alternate remedy under the statute.33

However, after the Constitution every High Court has been conferred with the power to issue
writs under Article 226 and these are original proceeding.34

The Honorable Apex Court has also opined that undoubtedly, it is within the discretion of the
High Court to grant relief under Article 226 of the Constitution of India despite existence of an
alternative remedy. However, the High Court must not interfere if there is an adequate
efficacious alternative remedy available to the petitioner and he has approached the High Court
without availing the same unless he has made out an exceptional case warranting such
interference or if there is sufficient grounds to invoke the extraordinary jurisdiction under Article
226 of the Constitution of India35

 In the said judgment it is furhter held that the Urban Land Tribunal under the provisions of the
Urban Land (Ceiling & Regulation) Act, 1976 is the legal authority to determine questions
affecting the rights of the parties and has the duty to act judicially. The Full Bench held that
against the orders as made by such Tribunal a writ of certiorari or a writ in the nature of
certiorari can be issued under Article 226 of the Constitution of India. In other words, the
aggrieved party would be justified in invoking the provisions of Article 226 for a writ of
certiorari against the order made by the Urban Land Tribunal in exercise of the judicial functions
conferred upon it by Section 33 of the Act. 36

Similarly in the present case also the High court is absolutely correct in granting the mandamus
even if there is alternate remedy available.

31
Tilokchand v. Motichand, (1969) SCR 110; CIWT Corporation v. B.N. Ganguly, AIR 1986 SC 1571.
32
State of Mysore v. Chablani, AIR 1958 SC 325 (328)
33
Aditanar Educational Institution v. Assistant Director of Income-tax,
34
State of U.P. and others vs. Dr. Vijay Anand Maharaj , AIR 1963,SC 946
35
Commissioner of Income Tax v. Chhabil Dass Agrawal, 2014 1 SCC 603
36
Gustadji Hanjisha Buhariwala & othr v. Nevil Bamansha Buhariwala & othr.

27
 Supreme court held that rule of exclusion of writ jurisdiction by availability of an alternative
remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of
availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at
least three contingencies: (i) where the writ petition seeks enforcement of any of the
Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the
orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged.37

It can be gathered from the decisions of the Supreme is that where statutory remedies are
available or a statutory Tribunal has been set up, a petition under Article 226 should not be
entertained, unless the statutory remedies are ill-suited to meet the demands of any extraordinary
situation, for example, where the very vires of the statute is in question, or where private or
public wrongs are so inextricably mixed up and the prevention of public injury and the
vindication of public justice require that recourse should be had to Article 22638

The Supreme Court in held that an alternative remedy is not a bar to move a writ petition in the
High Court to enforce a fundamental right39.

So, it should be evidently noted by the honorable court that there is no bar to the powers of high
court in issuing the mandamus for the removal of data. All the conditions which is mentioned in
all the above landmark cases is being fulfilled in the present case also, there is a grave injustice
done to the respondent. It should be noted that whatever respondent has done it is within the
private sphere of his life and publishing such things on the internet is public access to his private
information which is against his fundamental rights.

It is again humbly submitted that high court can grant the mandamus seeking removal of the
data from the websites.

37
. Harbanslal Sahnia vs. Indian Oil Corpn. Ltd 2003 2 scc 107
38
Jal Nigam v Nareshwar Sahai Mathur (1 SCC 21); Titaghur Paper Mills Co. Ltd. v State of Orissa (142 ITR 663) and
HB Gandhi v Gopi Nath and Sons ((1990) 77 STC 1)
39
Mohd. Yasin v Town Area Committee ,AIR 1952 SC 115

28
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