Gender Neutrality in Criminal Law: Reconsidering Section 498A of the Indian Penal Code and Section 85 of the Bharatiya Nyaya Sanhita, 2023 Through the Lens of Constitutional Equality
By Guru Legal
Keywords
gender neutrality; Section 498A IPC; Section 85 BNS; cruelty; Bharatiya Nyaya Sanhita 2023; Article 14; Article 15; equality; non-discrimination; male victims; domestic violence; gender-neutral law; Constitutional validity; criminal law reform; marital cruelty
Abstract
Section 498A of the Indian Penal Code 1860 (IPC), re-enacted as Section 85 of the Bharatiya Nyaya Sanhita 2023 (BNS), protects only married women from cruelty by their husbands or relatives of the husband. The gender-specific character of this provision, while reflecting the historical reality of the predominantly gendered nature of domestic violence in India, raises constitutional questions about whether the total exclusion of male and non-binary victims of marital cruelty from criminal law protection violates the guarantee of equality under Articles 14 and 15 of the Constitution of India 1950. This article examines the constitutional validity of Section 498A IPC / Section 85 BNS as a gender-specific provision, the judicial pronouncements upholding and critiquing its gendered character, the emerging recognition of male and non-binary experiences of domestic violence, and the arguments for and against gender-neutral reform of the domestic cruelty provisions. The article concludes with recommendations for a reformed framework that maintains special protection for women, as permitted by Article 15(3), while addressing the constitutional concerns raised by the absolute exclusion of other victims.
I. Introduction
The Indian criminal justice system has long grappled with the tension between the need for protective legislation targeting the historically most prevalent forms of oppression and the constitutional imperative of equality before law. Section 498A IPC, introduced in 1983 to address the specific and documented reality of domestic violence against married women particularly in the context of dowry harassment represents a deliberate legislative choice to create a gender-specific criminal law provision. This choice reflected the empirical reality that married women were overwhelmingly the victims of marital cruelty and dowry-related violence in Indian society.
The re-enactment of Section 498A as Section 85 of the Bharatiya Nyaya Sanhita 2023, without any expansion of the provision’s gender scope, has reignited the debate about whether the protection of cruelty law should be extended to include married men, persons in non-marital intimate relationships, and individuals of all gender identities who may experience marital cruelty. This debate has two dimensions: the empirical dimension, which concerns whether the prevalence and severity of domestic violence experienced by non-female victims warrants criminal law protection; and the constitutional dimension, which concerns whether the total exclusion of such victims is consistent with Articles 14 and 15 of the Constitution.
This article proceeds as follows. Part II examines the constitutional framework of gender equality under Articles 14 and 15. Part III analyses the constitutional validity of Section 498A IPC / Section 85 BNS as a gender-specific provision. Part IV evaluates the empirical and policy arguments for and against gender-neutral reform. Part V considers the international comparative dimension. Part VI advances reform recommendations. Part VII concludes.
II. The Constitutional Framework: Articles 14 and 15
Article 14 of the Constitution of India 1950 guarantees equality before law and equal protection of the laws. The doctrine of intelligible differentia, developed by the Supreme Court as the primary test for the validity of legislative classifications under Article 14, requires that any classification must: first, be founded on an intelligible differentia that distinguishes persons or things grouped together from those left out; and second, have a rational nexus to the object sought to be achieved by the legislation. A classification that does not satisfy these twin requirements is constitutionally void as arbitrary.
Article 15(1) prohibits discrimination on grounds of, inter alia, sex. Article 15(3), however, permits the State to make special provisions for women and children, providing an express constitutional authorisation for protective legislation that confers benefits or protections specifically upon women. The interplay between Article 15(1) and Article 15(3) creates the constitutional space within which gender-specific protective legislation operates: such legislation must be understood as a special provision for women under Article 15(3) rather than impermissible discrimination under Article 15(1).
However, the constitutional authorisation under Article 15(3) for special provisions for women does not resolve all questions about the gender scope of criminal law provisions. Where a criminal provision protects one gender from a specific category of harm but entirely excludes other genders who may experience the same harm, the exclusion may be challenged not under Article 15(1) which prohibits discrimination against the excluded group but under Article 14, on the ground that the classification of victims of cruelty by gender, for the purpose of criminal law protection, lacks a rational nexus to the legislative object in cases where the excluded group demonstrably suffers the same harm.
III. Constitutional Validity of Section 498A IPC / Section 85 BNS as a Gender-Specific Provision
The Supreme Court has consistently upheld the constitutional validity of Section 498A IPC as a gender-specific protective provision. In Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281, the Court rejected the challenge to Section 498A on the ground that it creates an arbitrary and unreasonable classification, holding that the provision is a reasonable classification under Article 14 read with Article 15(3), enacted in response to the specific and documented evil of domestic violence against married women. The Court emphasised that the classification of married women as the protected class, and their husbands and the relatives of the husbands as the class subject to criminal sanction, has a rational nexus to the legislative object of protecting women from marital cruelty.
Yet the constitutional analysis of gender-specific criminal law provisions cannot be static. The Supreme Court in Navtej Singh Johar v. Union of India (2018) 10 SCC 1 recognised that constitutional morality requires ongoing reassessment of legislative classifications in light of evolving social realities and the expanding understanding of constitutional rights. The increasing recognition of non-binary gender identities following the Supreme Court’s ruling in National Legal Services Authority v. Union of India (2014) 5 SCC 438 raises the question whether the binary gender framework of Section 85 BNS which protects only women and criminalises only men or their male relatives is consistent with the constitutional guarantee of equal protection for persons of all gender identities.
The re-enactment of Section 498A as Section 85 BNS, without extending its protection to transgender persons or to same-sex spouses whose marriages may in future be recognised, represents a legislative failure to engage with the evolving constitutional landscape of gender and identity. The constitutional validity of this omission is a live question that the courts will inevitably be required to address.
IV. The Empirical and Policy Arguments
The empirical evidence on the prevalence and severity of domestic violence experienced by male victims in India is limited but growing. Survey data suggests that a non-trivial proportion of married men experience physical, psychological, and economic abuse by their spouses or their spouses’ relatives. The underreporting of male domestic violence victims is attributable to multiple factors: social stigma, the absence of criminal law protection, and the unavailability of institutional support mechanisms analogous to those available to female victims under the PWDVA 2005.
Proponents of gender-neutral reform of Section 85 BNS argue that the constitutional guarantee of equality demands that all victims of marital cruelty receive equivalent criminal law protection, regardless of their gender. They further argue that gender-neutral criminal law would remove the incentive to file false complaints by women seeking to weaponise Section 498A in matrimonial disputes, since the coercive advantage of the provision’s gender asymmetry would be eliminated.
Opponents of gender-neutral reform argue that the prevalence, severity, and structural roots of domestic violence against women embedded in patriarchal social structures, economic dependence, and the power asymmetry of the matrimonial relationship are so qualitatively different from the domestic violence experienced by other groups that a gender-neutral provision would fail to adequately address the specific vulnerability of women. They further argue that Article 15(3) expressly permits special provisions for women, and that the legislature’s exercise of this constitutional permission is entitled to judicial deference.
V. Comparative Perspectives and Reform Recommendations
A number of jurisdictions have adopted gender-neutral domestic violence legislation while retaining enhanced protective mechanisms for women. The United Kingdom’s Domestic Abuse Act 2021, the United States’ Violence Against Women Act (which has been progressively expanded to cover male and LGBTQ+ victims), and Australia’s Family Law Act framework all provide instructive models for how gender-neutral criminal and civil domestic violence law can be designed without sacrificing the specific protections needed by female victims.
Based on this comparative analysis and the constitutional framework discussed above, the following reforms are recommended.
First, the Bharatiya Nyaya Sanhita 2023 should be amended to extend the criminal law protection of Section 85 to all married persons, regardless of gender, while retaining the special provision for women under Article 15(3) through enhanced investigation and prosecution standards in cases involving female victims.
Second, the Protection of Women from Domestic Violence Act 2005 should be renamed the Protection of Persons from Domestic Violence Act and its protective framework extended to all persons in domestic relationships regardless of gender, consistent with the recognition of diverse gender identities following the NALSA judgment.
Third, the government should commission a comprehensive national survey of domestic violence across all genders, to provide the empirical foundation for evidence-based reform of the domestic violence legal framework.
VI. Conclusion
The question of gender neutrality in criminal law provisions addressing marital cruelty touches the deepest values of the constitutional order: equality before law, protection from discrimination, and the recognition of human dignity for all persons regardless of their gender identity. Section 498A IPC, re-enacted as Section 85 BNS, was a product of its historical moment a moment when the need to protect women from the specific and documented evil of dowry-related domestic violence was urgent and clear. That moment has not passed; domestic violence against women remains pervasive and severe in India, and the need for strong criminal law protection of female victims is undiminished.
Yet the constitutional framework of Articles 14 and 15, as interpreted in the light of the evolving recognition of diverse gender identities and the right of all persons to equal protection of the laws, demands an ongoing reassessment of whether gender-specific criminal law provisions remain constitutionally adequate. The re-enactment of Section 498A without extension to transgender persons or recognition of same-sex intimate violence is a missed legislative opportunity. The courts and the legislature must work together to ensure that the criminal law framework for marital cruelty evolves in step with India’s constitutional commitments.
Frequently Asked Questions
Q1. Why is Section 498A IPC / Section 85 BNS gender-specific?
The provision was enacted in 1983 in response to the specific and documented phenomenon of domestic violence against married women, particularly in the context of dowry harassment. The legislature relied on the constitutional authorisation under Article 15(3) for special provisions for women to justify the gender-specific character of the provision. The Supreme Court upheld this characterisation in Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281.
Q2. Does the gender-specific character of Section 85 BNS raise constitutional concerns?
It raises questions under Article 14 and, potentially, under Article 15 in light of the Supreme Court’s recognition of diverse gender identities in National Legal Services Authority v. Union of India (2014) 5 SCC 438 and the principle of constitutional morality elaborated in Navtej Singh Johar v. Union of India (2018) 10 SCC 1. The absolute exclusion of male and non-binary victims of marital cruelty from criminal law protection may lack a rational nexus to the legislative object in cases where those victims suffer demonstrably equivalent harm.
Q3. What is the Supreme Court’s current position on the constitutional validity of Section 498A IPC?
The Supreme Court upheld the constitutional validity of Section 498A IPC in Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281, holding it a reasonable classification under Articles 14 and 15(3). The Court has not yet ruled definitively on whether the provision’s gender scope is constitutionally adequate in the light of the evolving recognition of diverse gender identities following the NALSA (2014) and Navtej Singh Johar (2018) judgments.
Q4. What is the argument against gender-neutral reform of Section 85 BNS?
Opponents argue that the prevalence, severity, and structural roots of domestic violence against women are qualitatively different from the domestic violence experienced by other groups, making gender-specific protection empirically and constitutionally justified. They further argue that Article 15(3) expressly authorises special provisions for women and that the legislature’s exercise of this constitutional permission is entitled to judicial deference.
Q5. What reforms are recommended to address gender neutrality in criminal domestic violence law?
Three reforms are recommended: first, amending Section 85 BNS to extend criminal law protection to all married persons regardless of gender, while retaining enhanced standards for female victims; second, extending the Protection of Women from Domestic Violence Act 2005 to all persons in domestic relationships; and third, commissioning a comprehensive national survey of domestic violence across all genders to provide an empirical foundation for reform.
Bibliography
Primary Sources
Bharatiya Nyaya Sanhita, 2023, Sections 85, 86.
Indian Penal Code, 1860, Section 498A (now replaced).
Protection of Women from Domestic Violence Act, 2005.
Constitution of India, 1950, Articles 14, 15.
Sushil Kumar Sharma v Union of India (2005) 6 SCC 281.
National Legal Services Authority v Union of India (2014) 5 SCC 438.
Navtej Singh Johar v Union of India (2018) 10 SCC 1.
Maneka Gandhi v Union of India (1978) 1 SCC 248.
Arnesh Kumar v State of Bihar (2014) 8 SCC 273.
EP Royappa v State of Tamil Nadu (1974) 4 SCC 3.
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Law Commission of India, Report No 237 on Compoundable and Non-compoundable Offences (Government of India, 2015).
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MP Jain, Indian Constitutional Law, 8th ed (LexisNexis, 2018).
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