Analysing The Misuse Of Section 85 And 86 Of BNSS,2023

Misuse of Protective Laws: Section 498A, Judicial Responses, and the Human Cost

The tragic case of Atul Subhash, a 34-year-old man from Pune who was found dead under suspicious circumstances in Bengaluru, has once again brought the debate on the misuse of laws meant to protect women into the national spotlight. Atul allegedly took his own life after enduring sustained mental harassment from his wife and in-laws. According to reports, this harassment was linked to false allegations under dowry and domestic violence provisions, which caused him immense psychological distress. His death has reignited the conversation on the need for gender-neutral legislation and raised concerns over the severe mental toll that false accusations can have on men.

The Law: Section 498A of the IPC

“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

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The term “cruelty” covers:

1. Willful conduct of such a nature as to cause grave injury or danger to the life, limb, or mental/physical health of a woman.
2. Harassment with the intention of coercing her or her relatives into meeting unlawful demands for property or valuable security.

Bhartiya Nyaya Sanhita, 2023 – Sections 85 and 86

The Bhartiya Nyaya Sanhita (BNS), 2023 retains this provision almost word for word in Sections 85 and 86, keeping both the scope and definition of cruelty identical to that in Section 498A IPC.

Section 85 penalizes the husband or his relatives for subjecting a woman to cruelty, prescribing imprisonment of up to three years and a fine.

Section 86 defines “cruelty” in terms virtually identical to the IPC—covering conduct that could lead to suicide or cause grave injury, as well as harassment over unlawful property demands.

The intent remains protective. The problem lies not in the letter of the law but in its application, where the lack of checks before arrest has opened the door to strategic misuse.

Section 498A: Legislative Purpose and Repetition

Section 498A of the Indian Penal Code (IPC) was enacted with the aim of safeguarding married women from cruelty by their husbands or in-laws. The law prescribes imprisonment of up to three years and a fine for anyone found guilty of such cruelty. The term “cruelty” covers willful conduct likely to cause grave injury or danger to life, limb, or health—whether mental or physical—as well as harassment intended to coerce a woman or her relatives into meeting unlawful demands for property or valuable security.

With the introduction of the Bhartiya Nyaya Sanhita (BNS), 2023, Sections 85 and 86 essentially reproduce Section 498A in its original form, retaining the same definitions of cruelty and harassment. While the legislative intent remains the protection of women, practical misuse continues to plague the implementation of this law, leading to calls for a more balanced, gender-neutral approach.

Nature and Consequences of Misuse

The misuse of Section 498A is a growing concern. In many cases, the provision is invoked as a weapon rather than as a shield. False complaints are sometimes filed not to seek justice but to pressure, blackmail, or extort money from the husband and his family. Since the offence is cognizable and non-bailable, arrests can be made without sufficient verification, resulting in loss of employment, public humiliation, and irreparable damage to family relationships. Innocent individuals often suffer immense mental trauma, and once a person’s reputation is tarnished, it is rarely restored.

The judiciary has repeatedly acknowledged this problem. In Preeti Gupta v. State of Jharkhand, the Supreme Court observed that matrimonial litigations are rapidly increasing, and many Section 498A cases are filed with exaggerated or false claims. Similarly, in G.V. Rao v. L.H.V. Prasad, the court noted that minor disputes are being escalated into criminal cases, often involving elderly family members who might otherwise have played a role in reconciliation. These judicial pronouncements reflect a reality where the misuse of protective laws undermines their original purpose.

Recommendations and Safeguards Proposed

The Malimath Committee on Reforms of the Criminal Justice System recognized the rampant abuse of Section 498A and recommended multiple safeguards. It suggested rigorous protections to prevent wrongful arrests, penalties for filing false complaints, and the promotion of mediation and counselling as alternatives to criminal prosecution in marital disputes. The committee also advised that Women’s Cells should have qualified family counsellors to filter out frivolous cases and that arrests should only be made after proper preliminary inquiries.

Courts have also provided certain safeguards to protect innocent individuals from false accusations. Police are directed not to arrest automatically in 498A cases without prima facie evidence. Victims of false accusations can apply for anticipatory bail, seek the quashing of false FIRs under Section 482 of the Criminal Procedure Code, and file defamation cases to protect their reputation. Additionally, under Section 9 of the Hindu Marriage Act, the aggrieved spouse may seek restitution of conjugal rights if the other party has withdrawn from cohabitation without a reasonable cause.

Judicial View on Misuse of Section 498A IPC

Section 498A of the Indian Penal Code (now largely mirrored in Sections 85 and 86 of the Bhartiya Nyaya Sanhita, 2023) was introduced in 1983 as a legislative weapon to curb the rising menace of cruelty and dowry harassment faced by married women. The provision makes cruelty by the husband or his relatives a cognizable, non-bailable offence, carrying imprisonment of up to three years and a fine. Its protective intent is undeniable; however, over the years, both the judiciary and policymakers have observed a disturbing parallel trend — the misuse of this law for purposes other than justice, often causing irreversible damage to the accused and their families.

The Judicial Dilemma: Shield vs. Weapon

From the outset, courts have recognized the delicate balance between ensuring protection for genuine victims and preventing harassment of innocents. The judiciary has repeatedly underscored that while the law must be stringent to protect women, it must not become a means of wreaking personal vengeance.

This dilemma is particularly acute because of the procedural character of Section 498A:

• Being cognizable, the police can register an FIR and arrest without a magistrate’s order.
• Being non-bailable, securing immediate release from custody becomes difficult.
• The scope of “cruelty” is broad, covering physical, mental, and economic abuse, making it susceptible to wide interpretation.

Key Supreme Court and High Court Pronouncements

1. Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281
   The Court acknowledged the real and serious misuse of Section 498A, describing how “it is being used as a weapon by disgruntled wives.” However, it firmly stated that the possibility of misuse is not a ground for repeal. The focus, the Court said, should be on preventive and corrective measures, such as stricter police protocols and penal action against false complainants.
2. Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667
   The Supreme Court observed that many complaints contain exaggerated versions of small incidents, naming every member of the husband’s family — sometimes including distant relatives who had little to no connection with the matrimonial life of the couple. The Court highlighted the psychological and financial toll such false allegations take on accused persons, urging Parliament to review the provision in light of changing social realities.
3. G.V. Rao v. L.H.V. Prasad & Ors. (2000) 3 SCC 693
   The Court lamented the criminalization of trivial domestic disputes, stating that elders and relatives who could have mediated are instead dragged into litigation, destroying any chance of reconciliation.
4. Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
   Recognizing the “legal terrorism” caused by indiscriminate arrests, the Court directed: no automatic arrest upon filing of an FIR; compliance with Section 41 CrPC (conditions for arrest) before taking a person into custody; and magistrates must independently verify the necessity of detention. Non-compliance could lead to departmental action against police officers and disciplinary proceedings against magistrates.
5. Savitri Devi v. Ramesh Chand (2003) DMC 508 (Delhi HC)
   The Delhi High Court noted the growing tendency to implicate the entire family of the husband without sufficient evidence, calling such misuse “legal cruelty” against the accused.
6. Rajesh Sharma v. State of U.P. (2017) 8 SCC 746 & Social Action Forum for Manav Adhikar v. Union of India (2018) 10 SCC 443
   In Rajesh Sharma, the Supreme Court sought to institutionalize Family Welfare Committees in each district to screen 498A complaints before arrests. Social Action Forum modified these directions, holding such committees could not be made mandatory through judicial fiat. Still, the principle that preliminary scrutiny is necessary before arrest remains central.

Judicial Themes Emerging from Case Law

The Psychological and Social Toll

The judiciary has frequently recognized the devastating personal consequences of false cases:

• Public stigma that lingers even if the accused is acquitted.
• Loss of employment due to prolonged trials.
• Family breakdown, especially when elderly parents or siblings are roped in.
• Mental health issues, including depression and suicidal tendencies.

The tragic suicide of individuals like Atul Subhash from Pune, allegedly driven by false harassment allegations, illustrates the human cost the courts seek to prevent.

Interaction with the Bhartiya Nyaya Sanhita, 2023

Policy-Linked Judicial Commentary

Courts have also echoed the Malimath Committee Report, which recommended:

• Mandatory pre-arrest inquiry by senior police officers.
• Family counselling before registration of FIR.
• Penalties for proven false cases.
• Use of arrest powers only in genuine cases after due verification.

While the legislature has not fully codified these suggestions, the judiciary has often adopted them as guiding principles in its orders.

Judicial Challenges in Implementation

Despite clear directions, compliance remains inconsistent:

• Some police officers continue to make mechanical arrests to avoid allegations of bias.
• Magistrates sometimes fail to strictly scrutinize arrest justifications.
• False complainants rarely face perjury or defamation proceedings, allowing misuse to persist without deterrence.

Courts have expressed concern that without strict enforcement mechanisms, even well-intentioned guidelines lose practical force.

The Balanced Path Forward

Judicial opinion points toward reform, not repeal:

• Retain stringent protections for genuine victims.
• Make the law gender-neutral to protect all spouses from cruelty.
• Introduce statutory pre-arrest procedures.
• Promote alternate dispute resolution mechanisms in matrimonial disputes.
• Strengthen penalties for malicious prosecution to deter false cases.

This balanced approach seeks to restore public confidence in the law by ensuring it is used as a shield, not a sword.

The judicial view on misuse of Section 498A — and now Sections 85 and 86 of the BNS — is neither dismissive of the plight of women nor blind to the suffering of innocent accused persons. Through landmark judgments, the courts have tried to strike a delicate equilibrium between the law’s original protective intent and the need to safeguard against its exploitation.

From Sushil Kumar Sharma to Arnesh Kumar, the message is clear: Justice is not served by automatic arrests or by treating every matrimonial discord as criminal cruelty. Nor is it served by allowing genuine victims to go unprotected. The judiciary envisions a framework where truth is filtered from falsehood early, mediation is encouraged where feasible, and punishment is certain — but only for the truly guilty.

As Indian society evolves and matrimonial relationships face new pressures, the judiciary’s task will remain to ensure that laws like Section 498A and its successors in the BNS protect without persecuting, and that the scales of justice remain firmly balanced.

The urgency for reform cannot be overstated. In a society where marriage is not merely a legal contract but a deeply valued social institution, laws must both protect the vulnerable and shield the innocent from wrongful prosecution. False allegations do more than damage reputations—they undermine genuine cases of abuse, cause prolonged and costly litigation, and inflict lasting psychological harm.

The path forward lies in striking a balance. Mandatory pre-arrest inquiries by senior officers, penalties for proven false complaints, gender-neutral legal provisions, and time-bound mediation processes could help address the issue. Public awareness about legal rights and remedies is also essential. Justice, after all, is not only about punishing the guilty—it is equally about ensuring that the innocent are protected.

The story of Atul Subhash is a sobering reminder that behind every legal provision are human lives. When laws meant to protect are misused, the cost is not merely in legal battles but in broken families, destroyed reputations, and sometimes, tragically, in lost lives.