VINOD KAUSHIK & ANR V.
MADHAVIKA JOSHI & OTHERS
Decided
On, 29 June 2011
COURT:
Cyber Appellate Tribunal New Delhi
BENCH:
THE HONOURABLE MR. JUSTICE RAJESH TANDON, CHAIRPERSON
1.
Vinod Kaushik
2.
Neeraj Kaushik
………Appellants
1.
Ms. Madhvika Joshi
2.
Sb. Atul Tripathy
3.
Ms. Monika Agnihotri
4.
Cognizant Technology Solutions Pvt.
……….Respondants
FACTS: The appellant
trades commodities including iron ore, chrome, manganese, and other metals, and
his son is married to the respondent. After respondent filed a false complaint
in Ujjain, which was then transferred to Pune, appellant's son began living
apart. 9 printouts of emails and chat communications between the appellant and
his son were shared by the respondent. Appellants claimed that because they
work with people from all over the world, they frequently change their
passwords and never share them. Appellants filed an
application with the IT Adjudicator of Maharashtra against the respondent and
her associates for illegal hacking, unauthorised access, and tampering of chat
messages after receiving the above-mentioned printouts, claiming damages of Rs.
50 lakh for monetary and reputational losses. The police used these printouts
to hold the appellant's son in detention for eight days, severely limiting the
appellants' business prospects because his passport was confiscated. The
complaint was dismissed by the Maharashtra IT Adjudicator, thus the appellants
went to the Cyber Appellate Tribunal to appeal. The cause for filing this
petition in this Court is that the Chairman of the Cyber Appellate Tribunal in
New Delhi, to which an appeal against the impugned ruling has been filed, has
passed away, and the Tribunal is unable to function. As a result, this Court's
jurisdiction has been asserted. The petitioners filed the aforementioned case
against Ms. Madhvika Joshi, Respondent No.1, among others. Ms. Madhvika Joshi
was married to petitioner No. 2, and petitioner No. 1 is Ms. Madhvika Joshi's
father-in-law. Ms. Madhvika Joshi accessed the petitioners' e-mail accounts and
printed chat sessions and e-mails from these accounts, which she used to press
her case against them under Section 498A of the Indian Penal Code. Respondent
No. 1 is technically guilty of violating Section 43 of the Information
Technology Act (IT Act), according to the knowledgeable Adjudicating Officer's
well-reasoned order. He does note, however, that respondent No. 1 has only used
the material she got from the petitioners' e-mail accounts to pursue her case
against the petitioners and for no other purpose. She has not utilised the
information for any other purpose, such as to defame or harm the petitioners,
and the information she has recovered has solely been handed to the police
authorities or the Court. As a result, the Adjudicating Officer has determined
that the petitioners are not entitled to any damages from the respondent.
ISSUES:
(1) Is Shri Vinod Kaushik's case maintainable, and does it need to be
considered on the merits by the Adjudicating Officer since he has suffered a
loss?
(2)
Can Sh.Neeraj Kaushik's absence give rise to him without him being named as a
complainant?
Because
learned counsel for the appellants has objected to respondent No. 4 being
removed from the list of respondents, point No. 3 is worded as follows:
(3)
Is it true that respondent No. 4 was removed from the list of respondents?
JUDGEMENT: Section 43 of
the IT Act, for example, states that anyone who downloads, copies, or extracts
any data, computer data base information, or information or data held or stored
in any removable storage medium from a computer, computer system, or computer
network without the permission of the owner or any other person in charge of
the computer, computer system, or computer network, including information or
data held or stored in any removable storage medium, shall be liable to pay
damages as compensation to the person so harmed. The claim for compensation
would not be based solely on the violation of Section 43.
The
claim would have to be established in the same way that it would be in a Civil
Court, by making the necessary averments about the damage suffered and then
presenting evidence in support of those averments to show that one or more of
the prohibited activities listed in Section 43 of the IT Act caused the person
concerned to suffer damages. In this instance, the petitioners have not
presented any evidence to establish what harm they have experienced as a result
of respondent No. 1's retrieval of their e-mails and chat sessions. Respondent
No. 1 used these e-mails and chat sessions in her case against the petitioners
under Section 498A of the IPC. The respondent's right to pursue
legal remedies, including those provided under Section 498A IPC, cannot be
questioned. The exercise of a person's right to air grievances and take action
against perceived illegalities and criminalities does not give rise to a cause
of action for damages against those who may be held liable as a result of such complaints/actions,
unless it is later determined that such complaints/actions were filed
maliciously. The petitioners have no cause of action since
respondent No. 1 has introduced in evidence the materials she gathered in
support of her claims in violation of Section 43 of the I.T. Act. The fine was
levied against respondent No. 1 under Section 66C. It shall be open to
respondent No. 1 to take appropriate action if she is aggrieved by the
aforementioned token fine on the grounds that the adjudicating authority lacked
jurisdiction to levy it under Section 66C.
CONCLUSION:
In
the historic case of Vinod Kaushik v. Madhvika Joshi, where the notion of right
to privacy was also incorporated in the marriage connection, this concept was
read into the fundamental right to life under Article 21 of the Constitution.
Even in a married relationship, a spouse has a right to privacy, and if the
other spouse unauthorisedly accesses sms, whats apps, or emails to prove a
reason for divorce, the erring spouse is accountable under the Information
Technology Act. This party, who is submitting such evidence in a Family Court,
has not come to the court with clean hands, limiting or negatively influencing
his remedies.
PRECEDENT:
Dr.
Kunal Saha v. Dr. Sukumar Mukheerji and others 2009
Savitri
Devi v. District Judge, Gorakpur and others, AIR 1999 SC 976
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