Balancing Rights: Protecting Victims of Domestic Violence While Preventing the Misuse of Section 85 of the Bharatiya Nyaya Sanhita, 2023 and the Protection of Women from Domestic Violence Act, 2005
By Guru Legal
Keywords
Section 85 Bharatiya Nyaya Sanhita 2023; Section 498A IPC; domestic violence; Protection of Women from Domestic Violence Act 2005; dowry; cruelty; misuse of law; Arnesh Kumar v State of Bihar; false complaints; right to life and liberty; Article 21; criminal justice reform; bail; anti-dowry law; gender justice
Abstract
Section 85 of the Bharatiya Nyaya Sanhita 2023 (BNS), which re-enacts and modifies Section 498A of the Indian Penal Code 1860 (IPC) on cruelty to married women by husbands and relatives, and the Protection of Women from Domestic Violence Act 2005 (PWDVA) together constitute the principal legislative framework for addressing domestic violence in India. While these provisions have served as indispensable tools for the protection of women facing marital cruelty, mounting judicial concern about their misuse including the filing of false and exaggerated complaints for collateral purposes in matrimonial disputes has generated an important constitutional and policy debate. This article examines the legislative history and substantive content of the domestic violence framework, analyses the judicial responses to misuse including the landmark directions in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, evaluates the constitutional balance between victim protection and the rights of the accused and their families, and advances recommendations for legislative reform that strengthens genuine protection while mitigating the potential for abuse.
I. Introduction
Domestic violence represents one of the most prevalent and under-reported forms of crime in India, inflicting severe physical, psychological, and economic harm upon victims who are disproportionately, though not exclusively, women. The Indian legal framework for addressing domestic violence has evolved significantly over the past four decades, beginning with the introduction of Section 498A into the Indian Penal Code 1860 by the Criminal Law (Second Amendment) Act 1983, the enactment of the Protection of Women from Domestic Violence Act 2005, and the recent re-codification of cruelty to married women as Section 85 of the Bharatiya Nyaya Sanhita 2023.
Section 85 BNS (formerly Section 498A IPC) criminalises the subjection of a married woman to cruelty by her husband or any relative of the husband, where cruelty is defined to include wilful conduct likely to drive the woman to suicide or cause grave injury or danger to her life, limb, or health, as well as harassment with a view to coercing her or her relations to meet unlawful demands for property or valuable security, including dowry. The offence is cognisable, non-bailable, and non-compoundable, which has historically resulted in automatic arrest of the accused upon the filing of a complaint, giving the provision significant coercive potential in the context of matrimonial disputes.
The dual challenge of domestic violence law in India is to ensure that the legal framework is robust enough to protect genuinely vulnerable victims while preventing its weaponisation as an instrument of harassment in matrimonial disputes. The Supreme Court’s landmark directions in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 represent the judiciary’s most significant attempt to strike this balance, by requiring magistrates and police officers to apply judicial mind before ordering arrest or issuing non-bailable warrants in Section 498A cases. This article examines this balance, the tools available under the BNS and PWDVA to achieve it, and the reforms needed to create a domestic violence framework that is both genuinely protective and constitutionally sound.
II. The Legislative Framework: Section 85 BNS and the PWDVA 2005
Section 85 of the Bharatiya Nyaya Sanhita 2023 substantially re-enacts the provisions of Section 498A IPC, with minor modifications. The essential elements of the offence remain unchanged: the victim must be a married woman; the perpetrator must be her husband or a relative of the husband; the conduct must constitute cruelty, defined to encompass both physical and mental cruelty including dowry harassment. The punishment prescribed is imprisonment for a term which may extend to three years, with fine. Section 86 BNS provides the definition of cruelty for the purpose of Section 85, mirroring the explanation to Section 498A IPC.
The Protection of Women from Domestic Violence Act 2005 provides a civil law complement to the criminal law framework. The PWDVA creates the category of domestic violence, which encompasses physical, sexual, verbal, emotional, and economic abuse; establishes Protection Officers and domestic violence courts; and provides for a range of civil remedies including protection orders, residence orders, monetary relief orders, and custody orders. The PWDVA extends beyond the spousal relationship to cover women in relationships in the nature of marriage as well as family relationships, providing broader coverage than the criminal law provision.
The interplay between the criminal framework of Section 85 BNS and the civil framework of the PWDVA is a significant feature of the domestic violence regime. In principle, a victim of domestic violence may simultaneously pursue criminal remedies under Section 85 BNS and civil remedies under the PWDVA, giving the legal system a comprehensive response to the multi-dimensional harm caused by domestic abuse. In practice, however, the non-compoundable nature of the Section 85 BNS offence means that once a criminal complaint is filed, it cannot be withdrawn by the complainant without the leave of the court, even in cases where the parties reconcile, potentially creating litigation that the complainant no longer wishes to pursue.
III. Misuse, Judicial Safeguards, and the Arnesh Kumar Framework
The Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 addressed the widespread complaint that Section 498A IPC was being misused as a tool of harassment in matrimonial disputes, with police mechanically arresting husbands and their relatives including elderly parents and distant family members upon the mere lodging of a complaint, without any independent assessment of whether the essential elements of the offence were made out. The Court held that arrest in cases under Section 498A IPC (now Section 85 BNS) shall not be made in a mechanical, uncritical fashion, and issued detailed directions requiring magistrates to apply judicial mind before granting or refusing remand and police officers to assess necessity of arrest before effecting it.
The Arnesh Kumar directions require every police officer to record, in writing, his reasons for concluding that arrest is necessary in a Section 498A/Section 85 BNS case, based on satisfaction of the necessity criteria prescribed by the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS). Failure to comply with these requirements renders the arrest illegal and entitles the accused to seek release on bail before a Magistrate on the ground of non-compliance with the statutory prerequisites. The directions also require Magistrates to carefully scrutinise remand applications and not mechanically extend custody without applying their own independent judicial mind to the necessity of continued detention.
The Supreme Court has in subsequent decisions reinforced the Arnesh Kumar framework, holding that the non-bailable character of the Section 498A/Section 85 BNS offence does not preclude anticipatory bail in appropriate cases, and that the courts must weigh the possibility of misuse of the provision against the genuine need for victim protection in each individual case. The Family Welfare Committees established by the Supreme Court in Rajesh Sharma v. State of Uttar Pradesh (2017) 6 SCC 1 which required preliminary assessment by such committees before police action in Section 498A cases were subsequently recalled by the Supreme Court in Social Action Forum for Manav Adhikar v. Union of India (2018) 10 SCC 443, on the ground that such a requirement was inconsistent with the statutory framework and would prejudice genuine victims.
IV. Consequences and Implications for Victim Protection and Rights of the Accused
The legal framework governing domestic violence, as shaped by Section 85 BNS, the PWDVA, and the Arnesh Kumar directions, carries significant consequences for all stakeholders in the domestic violence ecosystem victims, accused persons, families, and the criminal justice system.
For genuine victims of domestic violence, the framework provides powerful legal tools for protection and accountability. The PWDVA’s civil law remedies, including protection orders and residence orders, provide immediate relief without requiring criminal conviction; and Section 85 BNS provides a criminal sanction that serves both punitive and deterrent functions. The non-bailable character of the offence strengthens the bargaining position of the victim in matrimonial disputes and ensures that abusers cannot simply post bail and return to the matrimonial home to continue their conduct.
For accused persons and their families, however, the risk of false or exaggerated complaints motivated by matrimonial disputes, property claims, or personal animosity creates the genuine possibility of unwarranted arrest, custody, and reputational harm. The Supreme Court in multiple decisions has acknowledged that Section 498A IPC has been used as a tool of personal vendetta, with innocent relatives of the husband including elderly in-laws and young sisters-in-law being arraigned as accused without any credible specific allegations against them. Article 21 guarantees protection from arbitrary deprivation of personal liberty, and the use of the criminal law to exert coercive pressure in civil matrimonial disputes may constitute such arbitrary deprivation.
V. Reform and Recommendations
Reform of the domestic violence legal framework requires a carefully calibrated approach that preserves its protective value for genuine victims while mitigating its vulnerability to misuse.
First, the Bharatiya Nyaya Sanhita 2023 should be amended to make the offence under Section 85 compoundable with the leave of the court, removing the absolute bar on compounding that prevents genuine reconciliation and perpetuates unwanted criminal proceedings. A court-supervised compounding mechanism, which requires the court to be satisfied that the complainant is acting voluntarily and without coercion before permitting compounding, would protect against the use of compounding as an instrument of silencing victims while allowing genuine cases of reconciliation to be resolved without further criminal proceedings.
Second, the government should establish a specialised forensic social work cadre within the domestic violence investigation and protection system, tasked with independent assessment of the factual basis of domestic violence complaints before arrest action is taken, while ensuring that genuine victims receive immediate protection through the civil law remedies of the PWDVA pending investigation.
Third, the PWDVA should be amended to extend its protection to all genders, recognising that domestic violence is not an exclusively female experience and that the constitutional guarantee of equality under Article 14 requires a gender-neutral protective framework wherever the underlying harm is not inherently gender-specific.
VI. Conclusion
The law governing domestic violence in India, as constituted by Section 85 of the Bharatiya Nyaya Sanhita 2023 and the Protection of Women from Domestic Violence Act 2005, embodies the legislature’s commitment to protecting the dignity and safety of victims of marital cruelty. The Arnesh Kumar framework and the broader jurisprudence of the Supreme Court have sought to temper the coercive potential of the domestic violence provisions with procedural safeguards designed to protect innocent accused persons from unwarranted arrest. The balance between these competing imperatives victim protection and the rights of the accused is the central constitutional challenge of domestic violence law.
Achieving this balance requires legislative reform, judicial vigilance, and administrative capacity-building. The domestic violence framework must be made robust enough to protect every genuine victim, efficient enough to avoid prolonged adversarial proceedings that further victimise the complainant, and restrained enough to prevent its misuse as an instrument of coercion in matrimonial disputes. These demands are not irreconcilable; with the right institutional design and legislative calibration, India can have a domestic violence law that is both genuinely protective and constitutionally sound.
Frequently Asked Questions
Q1. What is the difference between Section 85 BNS and Section 498A IPC on cruelty to married women?
Section 85 of the Bharatiya Nyaya Sanhita 2023 substantially re-enacts Section 498A of the Indian Penal Code 1860, with the same essential elements: the victim must be a married woman, the perpetrator must be her husband or his relative, and the conduct must constitute cruelty as defined in Section 86 BNS. The punishment remains imprisonment of up to three years with fine. The BNS offence, like its IPC predecessor, is cognisable, non-bailable, and non-compoundable.
Q2. What directions did the Supreme Court issue in Arnesh Kumar v. State of Bihar regarding Section 498A arrests?
In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, the Supreme Court held that arrest in Section 498A IPC (now Section 85 BNS) cases must not be made mechanically without independent assessment of the necessity of arrest. The Court required police officers to record in writing their reasons for concluding that arrest is necessary, and required Magistrates to apply judicial mind before granting or extending remand. Failure to comply with these requirements renders the arrest illegal.
Q3. Can a Section 85 BNS complaint be withdrawn or compounded by the complainant?
Under the current law, the offence under Section 85 BNS is non-compoundable, meaning it cannot be withdrawn or settled by the parties without the court’s leave, and the court’s powers to permit compounding are significantly restricted. This feature has been criticised as preventing genuine reconciliation in matrimonial disputes. Reform to make the offence compoundable with court supervision has been recommended by the Law Commission of India in its 237th Report.
Q4. How does the PWDVA complement the criminal law framework for domestic violence?
The Protection of Women from Domestic Violence Act 2005 provides civil law remedies for domestic violence, including protection orders, residence orders, monetary relief orders, and custody orders, that are available independently of any criminal proceedings. The PWDVA covers a broader definition of domestic violence encompassing physical, sexual, verbal, emotional, and economic abuse, and extends to women in relationships in the nature of marriage, providing coverage beyond the strictly matrimonial relationship addressed by Section 85 BNS.
Q5. What reforms to the domestic violence framework are recommended to prevent misuse while protecting genuine victims?
Three principal reforms are recommended: first, amending Section 85 BNS to make the offence compoundable with court leave, enabling genuine reconciliation without perpetuating unwanted criminal proceedings; second, establishing a specialised forensic social work cadre to independently assess domestic violence complaints before arrest action; and third, amending the PWDVA to extend its civil protection framework to all genders, in accordance with the constitutional guarantee of equality under Article 14.
Bibliography
Primary Sources
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Bharatiya Nagarik Suraksha Sanhita, 2023.
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Constitution of India, 1950, Articles 14, 21.
Arnesh Kumar v State of Bihar (2014) 8 SCC 273.
Rajesh Sharma v State of Uttar Pradesh (2017) 6 SCC 1.
Social Action Forum for Manav Adhikar v Union of India (2018) 10 SCC 443.
Maneka Gandhi v Union of India (1978) 1 SCC 248.
Sushil Kumar Sharma v Union of India (2005) 6 SCC 281.
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