1. Legal Concept: Ex Parte Preservation Order

An ex parte preservation order is granted when:

• There is imminent risk of destruction of evidence
• Delay would defeat justice
• Giving notice would allow the other side to “clean up” records

Typical Reliefs sought:

• Sealing of electronic devices
• Direction to preserve WhatsApp/chat backups
• Freezing bank accounts
• Restraining sale/transfer of property
• Appointment of Local Commissioner
• Forensic imaging of devices

2. Key Legal Tests Applied by Courts

Courts generally apply:

(A) Prima facie case

Applicant must show credible evidence of dispute.

(B) Balance of convenience

Preservation must be more just than harm caused.

(C) Irreparable injury

Evidence destruction cannot be compensated later.

(D) Urgency + Risk of evidence tampering

This is the most critical factor in ex parte orders.

3. Drafting Structure (Marriage Preservation Application)

Title:

Application under Order XXXIX Rules 1 & 2 CPC read with Section 151 CPC for Ex Parte Urgent Preservation Orders

Main Components:

(1) Facts of Marriage Dispute

• date of marriage
• nature of dispute (cruelty, divorce, custody, dowry, financial fraud)

(2) Specific Threat of Evidence Destruction

• deletion of WhatsApp chats
• formatting of phone/laptop
• transfer of funds
• removal of property documents

(3) Description of Evidence to Preserve

• device details (IMEI, model, email IDs)
• bank accounts
• cloud storage
• social media accounts

(4) Grounds for Ex Parte Relief

• urgency
• secrecy risk
• past conduct showing concealment

(5) Legal Basis

• CPC provisions
• inherent powers of court

(6) Prayer Clause

Typical prayers:

• appoint local commissioner
• seize/seal devices
• direct forensic imaging
• restrain deletion/modification
• preserve CCTV footage for 90–180 days

4. Important Case Laws (Ex Parte Injunction & Preservation Principles)

1. Dorab Cawasji Warden v. Coomi Sorab Warden (1990)

Held:
Ex parte injunctions require very strong prima facie case and exceptional circumstances.

Key principle:
Courts must exercise extreme caution before granting ex parte relief.

2. Morgan Stanley Mutual Fund v. Kartick Das (1994)

Held:
Ex parte injunctions should be granted only when:

• irreparable harm is likely
• urgency is genuine
• notice would defeat purpose

Also laid down guiding factors for ex parte relief.

3. Dalpat Kumar v. Prahlad Singh (1992)

Held:
Defined the three pillars of injunction:

• prima facie case
• balance of convenience
• irreparable injury

Also emphasized judicial discretion must be based on sound principles.

4. Wander Ltd. v. Antox India Pvt. Ltd. (1990)

Held:
Appellate courts should not lightly interfere with discretionary injunction orders.

Reinforced that trial court’s discretion in preservation matters is crucial.

5. Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai (2006)

Held:
Reiterated that injunction is an equitable relief and must consider justice, equity, and good conscience, not just technical rights.

Useful in matrimonial preservation disputes involving fairness.

6. Ram Rameshwari Devi v. Nirmala Devi (2011)

Held:
Courts must discourage frivolous litigation but also ensure effective preservation of rights and evidence.

Important for balancing abuse vs necessity in injunction applications.

7. (Additional Supporting Principle) V.S. Krishnan v. Westfort Hi-Tech Hospital (2008)

Held:
Courts can use inherent powers to ensure ends of justice, including protective and procedural directions.

5. Application in Matrimonial Preservation Disputes

Courts often apply these principles in cases involving:

(A) Digital Evidence

• WhatsApp chats deleted after separation
• Email wiping
• social media account manipulation

(B) Financial Concealment

• sudden transfer of bank funds
• crypto asset hiding
• shell accounts

(C) Custody-related evidence

• school records
• medical reports
• call recordings

6. Practical Drafting Tips (Very Important)

1. Always specify exact device/account identifiers
2. Show credible urgency evidence (screenshots, threats, conduct)
3. Avoid vague allegations like “he may destroy evidence”
4. Link each request to specific risk
5. Ask for limited, time-bound preservation, not overbroad seizure
6. Prefer local commissioner + forensic imaging instead of physical retention

7. Typical Prayer Clause (Sample)

• “Pass an ex parte order directing preservation of all electronic devices including mobile phone, laptop, and cloud accounts of the respondent.”
• “Appoint a Local Commissioner to create forensic mirror image of the devices.”
• “Direct preservation of bank account statements and prohibit alteration or deletion of records.”
• “Direct preservation of CCTV footage for a period of 180 days.”