Protection Or Persecution ? The Dilemma Of Section 85-86 BNS (498A IPC)

Abstract

The article examines the tension between protecting victims of matrimonial cruelty and preventing misuse of criminal provisions. It focuses on the transition of Section 498A of the Indian Penal Code into Sections 85–86 of the Bharatiya Nyaya Sanhita (BNS), the procedural framework that governs these offences, judicial responses to misuse, the human cost of wrongful implication, and recent judicial developments through 2026. The piece argues for procedural safeguards and careful judicial scrutiny to preserve protection while minimising abuse.

I. Introduction

The shield-and-sword metaphor captures the central dilemma: a law enacted to protect women from cruelty can sometimes be used vindictively by complainants. This article traces the legislative background, procedural design, judicial responses to misuse, the empirical and human consequences of wrongful implication, and the current posture of courts after the enactment of the BNS. It concludes with actionable observations to preserve protection without enabling abuse.

II. Legislative Background

Why the law was enacted At a time when incidents of cruelty and dowry-related harassment were increasing, Parliament enacted Section 498A of the Indian Penal Code in 1983 to provide a criminal remedy for women subjected to cruelty by husbands and their relatives. That provision is now embodied as Sections 85 and 86 of the Bharatiya Nyaya Sanhita, which retain the core elements of the earlier provision and continue to classify the offence as cognizable, non-bailable, and non-compoundable.

III. Procedural Framework

Seriousness and practical effect These offences are cognizable and non-bailable, enabling police to register an FIR and begin investigation without prior magistrate approval. The non-bailable character vests the grant of bail in judicial discretion rather than as a matter of right, reflecting the legislature’s intent to treat matrimonial cruelty as a serious criminal wrong. The procedural design thus prioritises victim protection but can, in practice, create opportunities for misuse without appropriate safeguards.

IV. Judicial Responses to Misuse

Early warnings The Supreme Court confronted misuse concerns as early as Sushil Kumar Sharma v. Union of India, where the Court upheld Section 498A but warned that its misuse could create “new legal terrorism.”

Clarifying limits In subsequent decisions, the Court emphasised the need for specificity in allegations. In Preeti Gupta v. State of Jharkhand, the Court warned against implicating distant relatives with no real connection to the matrimonial household without proof of specific conduct.

Procedural safeguards against automatic arrest In Arnesh Kumar v. State of Bihar, the Supreme Court held that arrest in such cases must be the exception rather than the rule and directed police to apply the necessity test in Section 41 of the Criminal Procedure Code before making arrests, thereby reducing arbitrary detentions.

Recent quashing jurisprudence More recently, in Kahkashan Kausar @ Sonam v. State of Bihar, the Court quashed criminal proceedings against relatives where allegations were omnibus and lacked specific role-based averments. The Court explained that vague and sweeping allegations cannot sustain criminal proceedings against persons who have not been specifically linked to the alleged conduct.

V. A Pattern of Judicial Intervention

Repeated themes Across a line of authorities, the courts have repeatedly affirmed these principles: (1) the provision is constitutionally valid; (2) misuse is a real concern; (3) investigators and magistrates must scrutinise allegations for specificity before proceeding; and (4) arrest should not be automatic. These thematic interventions aim to preserve the law’s protective purpose while limiting collateral harm to those wrongly implicated.

VI. The Human Cost of Wrongful Implication

Consequences borne by the accused Even where FIRs are ultimately quashed or accused persons are acquitted, the interim period can impose severe burdens: social stigma, financial expenditure, reputational damage, loss of employment, prolonged litigation, and emotional distress. For elderly parents and distant relatives dragged into proceedings, the experience can amount to prolonged helplessness and social ostracism.

Empirical indicators National Crime Records Bureau data show relatively low conviction rates in these offences, with conviction figures reported in the low teens as a percentage of trials in recent years. These figures do not prove that complaints are false; acquittals may follow from insufficient evidence, hostile witnesses, compromises between parties, or procedural defects. The statistics, however, underscore the importance of careful case-by-case assessment by investigators and courts.

High-profile consequences Publicised incidents of alleged misuse that culminated in tragic outcomes have intensified national debate about procedural safeguards and mental-health impacts, and have prompted petitions and public interest litigation seeking stronger protections for the falsely accused. Specific instances cited in public discourse must be treated carefully and verified in each instance before drawing legal conclusions.

VII. Developments after the BNS Enactment

Statutory continuity When the Bharatiya Nyaya Sanhita came into force on 1 July 2024, Sections 85 and 86 largely reproduced the substantive offence formerly in Section 498A, retaining the three-year punishment and the cognizable, non-bailable, non-compoundable character. The core legislative design therefore remains unchanged.

Procedural mapping Several procedural safeguards developed under the criminal procedure regime have been mapped into BNS-related provisions. Principles that arrest should be exceptional and that preliminary scrutiny is required have been reiterated by higher courts in 2025–2026, with courts applying existing safeguards to prevent mechanical arrests and indiscriminate inclusion of relatives in FIRs.

Recent case law A steady line of decisions in 2025–2026, including decisions that set aside convictions or quash proceedings because allegations lacked specificity or credible evidence, shows continued judicial commitment to balancing victim protection with protection against misuse. Courts have emphasised that the presence of potential misuse is not a reason to strike down the law itself; rather, careful judicial application preserves its constitutionality and protective purpose.

VIII. Practical Implications for Stakeholders

For investigators Police must apply the necessity test before arresting, conduct preliminary verification to identify active participants, and avoid treating every complaint as establishing culpability on first instance.

For prosecutors Prosecutors should review charge sheets for specificity, ensure that relatives are not included without supporting evidence of personal involvement, and assist courts by flagging weak or omnibus allegations at the earliest stage.

For courts Magistrates and higher courts should continue to apply quashing powers and bail principles where allegations are vague, and should require a restrained approach to arrest and detention consistent with the protection of both victims and the rights of the accused.

IX. Conclusion

The dilemma is real: the law is necessary to protect victims of cruelty and dowry-related harassment, but it can be used vindictively in some cases. The correct response is not to weaken protective legislation but to strengthen procedural safeguards, ensure careful preliminary scrutiny, and apply judicial remedies to prevent and redress misuse. In short, sharpen the shield for those who need it and blunt its capacity to be used as a weapon by the vindictive, while preserving the law’s protective core.

References

1. Overview and context assembled from the article text and public legal materials. 
2. Bharatiya Nyaya Sanhita, Sections 85–86 (as enacted July 2024), and comparison with Indian Penal Code Section 498A (1983). 
3. Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281. (Supreme Court of India). 
4. Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667. (Supreme Court of India). 
5. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. (Supreme Court of India) — necessity of arrest and directions on Section 41 CrPC application. 
6. Kahkashan Kausar @ Sonam v. State of Bihar, (2022) 6 SCC 599. (Supreme Court of India) — quashing omnibus allegations against relatives.
7. National Crime Records Bureau, Crime in India Report — conviction statistics for dowry/cruelty-related offences.
8. Publicly reported incidents and PILs arising from alleged misuse and tragic outcomes.