Section 85 BNS (Formerly Section 498A IPC): Why India Needs Reform, Not Repeal
The transition from the Indian Penal Code (IPC) to the Bharatiya Nyaya Sanhita (BNS), 2023, has retained one of India’s most debated criminal provisions. Formerly known as Section 498A IPC, the law now finds its place under Sections 85 and 86 of the BNS. While its primary purpose remains the protection of married women from cruelty, dowry harassment, and domestic abuse, growing concerns over misuse have reignited the national debate on balancing protection with procedural fairness.
The real question facing lawmakers today is not whether women require legal protection—they unquestionably do. The challenge is ensuring that the law effectively punishes genuine offenders without becoming a tool for indiscriminate prosecution of entire families.
Understanding Section 85 and Section 86 of the Bharatiya Nyaya Sanhita
Under the Bharatiya Nyaya Sanhita, Section 85 prescribes punishment for cruelty committed by a husband or his relatives against a married woman. Section 86 elaborates on what constitutes cruelty, including:
- Conduct likely to drive a woman to suicide.
- Conduct causing grave physical or mental injury.
- Harassment connected with unlawful demands for dowry, property, or valuable security.
- Persistent abuse threatening a woman’s safety, dignity, or well-being.
The punishment continues to be imprisonment of up to three years along with a fine, reflecting the legislature’s commitment to combating domestic violence and dowry-related abuse.
Quick Overview of Sections 85 and 86 of the BNS
| Provision | Subject Matter | Key Feature |
|---|---|---|
| Section 85 BNS | Punishment for cruelty | Up to 3 years imprisonment and fine |
| Section 86 BNS | Definition of cruelty | Includes dowry-related harassment and grave mental or physical cruelty |
The Continuing Reality of Dowry Harassment in India
Dowry-related crimes remain a serious social problem across India. Reports from the National Crime Records Bureau (NCRB) continue to show thousands of cases involving dowry deaths, domestic cruelty, and harassment every year.
Recognising this reality, the Supreme Court of India has repeatedly affirmed the constitutional validity of the provision. In recent observations, the Court acknowledged that dowry remains deeply rooted in Indian society and that the possibility of misuse cannot justify dismantling a protective law intended to shield vulnerable women.
However, acknowledging the need for protection does not eliminate concerns about abuse of the legal process.
The Growing Concern Over Misuse of Section 498A and Section 85 BNS
Over the years, courts across India have noticed a recurring pattern in certain matrimonial disputes:
- Entire families named in FIRs.
- Elderly parents implicated despite living separately.
- Married sisters and distant relatives added without specific allegations.
- Generalised accusations lacking dates, events, or individual roles.
- Criminal proceedings used as leverage during divorce or settlement negotiations.
Such allegations may ultimately fail in court, but by then the accused often suffer significant personal, social, and financial damage. Reputation, employment opportunities, mental health, and family relationships frequently become casualties of prolonged criminal litigation.
Common Allegations Seen in Matrimonial Disputes
| Issue | Impact on Accused Persons |
|---|---|
| Omnibus allegations | Difficulty defending vague accusations |
| Mass implication of relatives | Entire family drawn into litigation |
| Automatic arrests | Loss of liberty and reputational harm |
| Prolonged proceedings | Financial and emotional burden |
Arnesh Kumar Judgment: A Landmark Safeguard
One of the most significant judicial interventions came in the landmark case of Arnesh Kumar v. State of Bihar (2014).
The Supreme Court observed that Section 498A had increasingly been used as a “weapon rather than a shield” in some cases and warned that automatic arrests were contributing to unnecessary harassment of accused persons.
The court directed police authorities to:
- Avoid automatic arrests.
- Conduct proper investigation before depriving an individual of liberty.
- Follow statutory safeguards governing arrest.
- Record reasons for arrest and detention.
These principles remain highly relevant under the new criminal law framework and continue to influence police procedures throughout the country.
Kahkashan Kausar Case: Protection Against Omnibus Allegations
In Kahkashan Kausar v. State of Bihar (2022), the Supreme Court once again addressed the issue of indiscriminate prosecution.
The Court cautioned against the growing tendency to implicate all relatives of a husband based on vague and omnibus allegations. It emphasised that criminal law cannot be invoked merely because of familial relationships and that courts must carefully scrutinise complaints lacking specific accusations against individual family members.
The judgment reinforced a crucial principle:
Mere relationship with the husband is not sufficient to justify criminal prosecution.
Recent Judicial Trends in 2025 and 2026
Recent decisions from various High Courts and the Supreme Court continue to emphasize:
- Specific allegations must be supported by facts.
- Criminal proceedings against distant relatives should not proceed solely on generalised accusations.
- Arrest must remain an exception rather than a routine response.
- Personal liberty under Article 21 of the Constitution deserves equal protection.
Courts have increasingly quashed criminal proceedings where complaints fail to disclose the distinct role of each accused person. This emerging jurisprudence reflects a growing effort to balance victim protection with due process safeguards.
Why Structural Reform Is Necessary
The answer is not repeal.
Eliminating Section 85 BNS would leave genuine victims vulnerable and weaken India’s fight against domestic violence and dowry-related cruelty.
Instead, India requires structural reforms that preserve protection while reducing opportunities for misuse.
Recommended Structural Reforms
- Specific Allegation Requirement
Every complaint should clearly mention:
- Date and time of incidents.
- Nature of alleged cruelty.
- Role of each accused person.
- Details of any dowry demand.
- Supporting evidence where available.
- Enhanced Scrutiny Before Summoning Relatives
Courts should conduct preliminary scrutiny before issuing summons to parents, siblings, and extended family members where allegations are vague or repetitive.
- Written Justification for Arrest
Investigating officers should record detailed reasons explaining why arrest is necessary, particularly in matrimonial disputes.
- Separate Evaluation of Each Accused
The husband and other relatives should not automatically face identical treatment when allegations differ significantly.
- Speedy Disposal of Frivolous Cases
High courts should prioritise petitions seeking the quashing of proceedings based on generalised or legally insufficient allegations.
- Accountability for Deliberately False Complaints
Where courts conclusively find that allegations were knowingly fabricated, appropriate legal consequences should follow to discourage abuse of criminal processes.
- National Data Collection
Government agencies should maintain transparent statistics concerning:
- Convictions.
- Acquittals.
- Quashed proceedings.
- Settlements.
- Cases involving false implication.
Balancing Women’s Rights and Due Process
A mature legal system must be capable of protecting two important principles simultaneously:
- The right of women to live free from violence, harassment, and dowry-related abuse.
- The right of accused persons to fair treatment, due process, and protection from arbitrary prosecution.
These goals are not contradictory. In fact, they reinforce public confidence in the justice system.
When innocent people are unnecessarily prosecuted, faith in the law suffers. Conversely, when genuine victims are denied protection, justice fails its most fundamental purpose.
The Way Forward
India does not need a weaker law against cruelty.
India needs a more precise, evidence-driven, and accountable law.
Section 85 BNS should continue to protect women facing genuine abuse. At the same time, procedural safeguards must ensure that criminal law is not transformed into a tool of pressure, revenge, or family-wide prosecution.
The objective should be simple:
- Punish cruelty.
- Protect victims.
- Preserve liberty.
- Respect due process.
- Prevent misuse.
Justice cannot be selective, and fairness cannot be optional. A legal system earns legitimacy not merely by protecting the vulnerable but also by ensuring that the innocent are not wrongfully punished.
That is why the future of Section 85 BNS lies not in repeal but in thoughtful structural reform.
