The recent tragic death of 34-yr old techie Atul Subhash, who is reported to have died by suicide due to marital discord with his wife and ensuing litigations, has sparked a debate around Section 498A of the old Indian Penal Code and sections 85 and 86 of the Bhartiya Nyay Sanhita (BNS).

Though, the issue of misuse of women-centric laws - Section 498A IPC and sections 85 and 86 of the Bhartiya Nyay Sanhita (BNS) in particular - is the most discussed topic it has continued to surface over the years, with even the Supreme Court of India raising concerns about this section being exploited by disgruntled wives as a legal tool against their husbands and their family members, for arm-twisting and ensuring compliance with unreasonable demands.

In this article, we will look at Section 498A IPC and section 85 and 86 of the Bhartiya Nyay Sanhita (BNS). stipulates what the Supreme Court has said about its possible misuse in the recent past.

Introduction
Section 498A IPC was introduced in the statute in 1983 with the object of arresting dowry deaths and cruelty meted out by a husband or his relatives against a wife. It was a cognizable, non-compoundable and non-bailable offense, and reads as:

"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.

Explanation:
For this section, "cruelty means":

1. Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
2. Harassment of the woman where such harassment is to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."[2]

In 2005, the constitutional validity of Section 498A IPC was challenged (In Re: Sushil Kumar Sharma v. Union of India), but the same was upheld by the Supreme Court. The petitioner in the case brought to the notice of the Court that the provision was being rampantly invoked by wives with oblique motives. Acknowledging the same, the Court said that it may become necessary for the legislature to find out ways of which frivolous complaints or allegations can be appropriately dealt with. However, till that happens, it would be upon the courts to deal with the situation within the existing framework.

In this Judicial pronouncement, delivered about two decades ago, the Court cautioned that misuse of Section 498A IPC could unleash a "new legal terrorism". It further stressed that the provision was intended to be used as a shield for women against dowry harassment and not assassin's weapon. It was alleged that prosecuting authorities often approach such cases with a pre-conceived notion that the accused are guilty, the Court underlined that authorities must endeavour to ensure that innocent persons are not made to suffer on account of baseless allegations.

"Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment....the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound", the Court opined.

Safeguards against unwarranted arrest (Arnesh Kumar v. State of Bihar)[3]
The period between 2007 and 2013 saw a rise in the number of cases registered under Section 498A IPC but a fall in the conviction rates. As per reports, the number of cases pending trial at the beginning of 2007 was around 2.67 lakh and this number increased to 4.66 lakh at the beginning of 2013 - a rise of almost 75% in 7 years.

As the apprehensions surrounding misuse of Section 498A IPC picked pace, in 2014, the Supreme Court finally delivered a landmark judgment in the case of a husband who approached it seeking protection from arrest pursuant to a Section 498A IPC complaint by the wife. Essentially, the Court issued guidelines which inter-alia restrained police officers from automatically arresting the accused in dowry related cases.

In order to prevent unnecessary arrest and save embarrassment, the Court directed all State governments to instruct the police officers to not automatically arrest when a case under Section 498A IPC was registered and to satisfy themselves about the necessity for arrest. Further, it was held that all police officers shall be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii), which they shall fill and furnish along with reasons and material for arrest, while producing the accused before a Magistrate for further detention.

The Magistrate was mandated to record a satisfaction after perusing the police officer's report and before authorizing detention and check the guidelines issued by the Apex Court. The guidelines, though issued in a Section 498A IPC case, were held to apply to all offenses where maximum punishment extended up to 7 years (with or without fine).

In this case, the Supreme Court also stated that Section 498A IPC was being rampantly abused and it was used as a tool for fulfilling the exorbitant demands. It noted that in several cases, bedridden grandparents of husbands and sisters living abroad for decades were being arrested. While the rate of filing the completion report in such cases was over 90%, the conviction rate was only 15% - the lowest across all heads.

The Apex Court highlighted that the simplest way for wives to harass their husbands was to make a complaint under Section 498A IPC and get them and their family members arrested. Accordingly, considering the effect on the liberty and freedom of citizens, it was cautioned that arrest shall be made with great care and caution.

In 2015, the National Commission for Women sought a review of the Arnesh Kumar Judicial Pronouncement raising the following contentions:

1. an accused could secure bail from the trial court in case of wrongful arrest,
2. the law laid down in the judgment was liable to be misused by police, and
3. the Judicial pronouncement went beyond the statutory mandate and gave a very wide arm to police with respect to arrest of a person. However, the Supreme Court declined the same.

Setting up of Family Welfare Committees and checks on arrest (Rajesh Sharma v. State of UP)
After the Arnesh Kumar judgment, in 2017, the Supreme Court again expressed concern over disgruntled wives misusing the anti-dowry law against their husbands and in-laws.

It issued a fresh set of directions to prevent the misuse of Section 498A IPC. These included setting up of district-wise Family Welfare Committees comprising para legal volunteers, social workers, retired persons, wives of working officers, etc., which would look into every complaint received under Section 498A IPC. The Committee could interact with the parties, and thereafter, submit its report (within 1 month) to the authority that referred the case to it. Till such a report was received by the authority, no arrest could be made.

Further, this Judicial Pronouncement opened avenues for settlement to be reached in marital disputes before the District Sessions Judge (or any other nominated senior Judicial Officer). The proceedings, including criminal cases, arising out of marital discord could be disposed of by the said Judge/officer, if the settlement was arrived at via a mediation process.

Notably, in the context of bail applications filed in marital disputes, these directions stated that individual roles, prima facie truth of allegations, requirement of further arrest/custody and interest of justice ought to be weighed.

In 2018, however, a three-judge bench of the Court withdrew the direction that complaints under Section 498A IPC should be scrutinized by Family Welfare Committees before further legal action by police (Re: Social Action Forum For Manav Adhikar v. Union of India) [4]. Though it was acknowledged that there was a misuse of the provision, leading to social unrest, the Court said that it could not fill legislative gaps. Other directions issued by Rajesh Sharma were also modified by this judgment.

Need to ensure that distant relatives of husband are not implicated unless actual offence made out

More often than not, family members of the husband are also implicated in dowry and cruelty cases, without any specific allegations. Taking note of instances of over-implication and exaggerated versions by wives, the Supreme Court has time and again stressed the need for authorities to be circumspect in matrimonial disputes, to prevent undue suffering of family members based on vague allegations. Some of these Judicial Pronouncements are below:

1. Geeta Mehrotra and Anr. v. State of U.P.[5]
   In 2012, the Apex Court held that in a matrimonial dispute, mere casual reference to the names of family members, without allegation of active involvement, would not justify taking cognizance against them. The Court emphasized that the tendency of over-implication i.e. to draw all members of the household into the domestic quarrel shall not be overlooked - especially when it happens soon after the wedding.
   
   The unmarried sister-in-law and brother-in-law of the complainant-wife approached the Supreme Court seeking quashing of the crime against them. Going through the material, the Court observed that the FIR did not disclose specific allegations against the two, except for casual reference of their names. The Supreme Court itself quashed the criminal proceedings as a continuation of the same would amount to the abuse of the process of law.
    
2. Yashodeep Bisanrao Vadode v. State of Maharashtra[6]
   In October 2024, the Supreme Court set aside the conviction of the brother-in-law Sections 498A r/w 34 IPC, noting that there were no specific allegations and/or evidence against him. The appellant was booked along with the husband and sister-in-law for allegedly torturing and harassing the deceased about dowry demand. The High Court's order upholding his conviction, contending that there was no credible evidence proving his guilt because the alleged demand of dowry was made in January 2010 however his marriage with the deceased's sister-in-law was solemnized later in October 2010 and was challenged in the Supreme Court.
   
   Finding "no iota of evidence" against him, the Court said that the appellant could not be held guilty merely on account of him being the husband of the deceased's sister-in-law. The court expressed dismay over the tendency to over-implicate persons and the presentation of exaggerated versions in Section 498A IPC cases. The Court said, "the courts have to be careful to identify instances of over implication and to avert the suffering of ignominy and inexpiable consequences, by such persons".
    
3. Payal Sharma v. State of Punjab[7]
   In November, 2024, the Supreme Court issued a word of caution for courts to ensure that distant relatives of a husband are not unnecessarily implicated in criminal cases filed at the behest of the wife under Section 498A IPC. In this case, the complainant (wife's father) lodged an FIR soon after the husband filed for divorce. Apart from the husband and his parents, the FIR implicated the husband's cousin brother and his wife, on allegations of dowry harassment and cruelty.
   
   When the couple sought quashing of the case, the High Court refused their prayer noting that the chargesheet had already been filed. In this backdrop, the matter reached the Supreme Court and the top Court held that the High Court was duty-bound to examine if the implication of the distant relatives of the husband was an "over implication" and an "exaggerated version". In the facts of the case at hand, it was noted that the petitioners (the cousin brother and his wife) were residing in a city different from the place of residence of the complainant's daughter.
    

The Court further observed that though the word "relative" for the purposes of Section 498A IPC has not been defined, it should be understood in the common sense of the term. That is, it can be taken to include father, mother, husband or wife, son, daughter, brother, sister, nephew, niece, grandson or granddaughter of any individual or the spouse of any person. If allegations are raised against a person not related by blood, marriage or adoption, courts must examine if they are exaggerated. "In such circumstances...the Court concerned owes an irrecusable duty to see whether such implication is over implication and/or whether the allegations against such a person is an exaggerated version", the Court said.

Supreme Court's request to Parliament to amend anti-dowry law
In light of rampant invoking of Section 498A IPC by wives, the Supreme Court has on occasions called on the Parliament to take note of ground realities and amend the laws

Achin Gupta v. State of Haryana[8]
Before provisions of the Bhartiya Nyaya Sanhita, 2023 came into effect on July 1, 2024, the Supreme Court requested the Parliament to consider making changes to Sections 85 and 86 thereof (akin to Section 498A IPC, considering the pragmatic realities and the misuse of the provision by disgruntled wives. For context, the new provisions in BNS are verbatim reproductions of Section 498A IPC, except that the Explanation to Section 498A IPC (defining "cruelty") is now a separate provision, i.e., Section 86 of the BNS.

In this case, the husband had approached the Supreme Court against the High Court's refusal to quash the FIR under Sections 323, 406, and 498A of the 506 IPC registered against him on the complaint of his wife. The FIR was preceded by the filing of a divorce case by the husband against his wife alleging cruelty.

In this backdrop, the Court observed that after reading the FIR/complaint in its entirety, if it is found that the criminal proceedings were initiated with an oblique purpose just to harass the accused, then it is incumbent upon the High Court to exercise its inherent powers under Section 482 CrPC to the criminal proceedings.

Quashing the case at hand, the Court also cautioned that police shall not apply Section 498A IPC mechanically in all complaints filed by wives. It opined that even if the FIR/chargesheet discloses a cognizable offence, courts must read between the lines to see if there is an oblique motive on the part of the complainant-wife and take a pragmatic view.

"The Police machinery cannot be utilised to hold the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases, where the wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. No FIR is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may annoy the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty."

Voicing similar concerns, in the aftermath of Atul Subhash's death, a public interest litigation (PIL) has also been lately filed before the Supreme Court, which seeks directions to ensure that a husband and his family members are not harassed in cases filed under domestic violence and dowry laws. Petitioner-Advocate Vishal Tiwari also seeks the constitution of an expert committee of retired judges, eminent lawyers and legal jurists to review and reform existing dowry and domestic violence laws and suggest measures to prevent their misuse.

Conclusion:
Besides the Supreme Court, High Courts have repeatedly voiced their concerns about the misuse of anti-dowry and domestic harassment laws. But the fact remains that once a wife gets a cruelty case registered, the husband and his family members are obligated to move the jurisdictional High Court for quashing. The sheer number of marital disputes that are settled in High Courts under Section 482 CrPC, after negotiation of the terms between the parties, speaks volumes in this regard.

Since the legislature has maintained a deafening silence on lacunas in the law, the question is - what safeguards can courts bring into practice to undo the weaponization of Section 498A IPC (now replaced by Sections 85 and 86 BNS), without jeopardizing the interests of genuine victims.

Primarily, it needs to be realized that Arnesh Kumar guidelines act as a shield only against unwarranted arrests, but the scales are heavily tilted in favour of wives on other aspects of the matter, due to the inherent nature of anti-cruelty and harassment laws. The day-to-day struggles involved in matrimonial cases, ranging from stigmatization, lack of negotiation power, lack of access to one's child, having to attend trial in far-off places, etc, have not been looked into.

With oblique motives involved, the disparities between how the two parties face the ordeal take a heavy mental toll on the husband's side. Atul Subhash's case is one extreme example of what countless husbands and their families go through.

The Judicial Pronouncements have acknowledged the ignominy that matrimonial cases entail and the fact that the same cannot be wiped off even in case of acquittals, it is high time the Supreme Court lays down guidelines to address the misuse of anti-cruelty and harassment laws, by dealing inter-alia with accountability of wives in cases of false prosecution, prevention of abuse of position by police officers and advocates, sensitization of mediators and judges, state-assisted counselling for couples and family members, etc.

End Notes:

1. The Author has been practising as a defense counsel in the Bombay High Court from 2007 and is dealing in Criminal Litigation, after completing her Post- Graduate Diploma in Cyber laws and Alternate Dispute Resolution From Mumbai University and Post Graduate Diploma in Hinduism from Harvard University is pursuing Masters in Constitutional Law.
2. The Criminal Law (Second Amendment) Act, 1983, Act No. 46 of 1983 (India).
3. (2014) 8 SCC 273.
4. (2018) SCC VOL 10 PART 3
5. (2012) 9 S.C.R. 641
6. (2024) SCC Online SC 2989
7. 2024 INSC 896
8. (2024) 6 S.C.R. 129

Written By: Advocate Swapana Pramod Kode