Introduction
For decades, one section of the Indian Penal Code carried a weight disproportionate to its length. Section 498A , barely a paragraph ; became shorthand for an entire, fraught conversation about marriage, cruelty, and the law’s ability to protect women without becoming a tool for someone else’s revenge. When the Bharatiya Nyaya Sanhita, 2023 replaced the IPC, that provision did not disappear in fact it was renumbered, restructured, and, in places, reimagined as Sections 85 and 86. The question this reimagining raises is not just technical but rather that is whether a new numbering, and a slightly rewritten definition, changes anything at all for the women the provision was written to protect, or for the families who have long argued it protects too much, too easily.
From Section 498A to Sections 85 and 86: What Changed
Section 498A of the IPC, introduced in 1983 in response to a rising number of dowry deaths and domestic cruelty cases, criminalised cruelty by a husband or his relatives toward a married woman. The Bharatiya Nyaya Sanhita, 2023 carries this offence forward, but splits it structurally:
- Section 85 deals with the offence itself ; a husband or relative of the husband subjecting a woman to cruelty is punishable with imprisonment up to three years and a fine.
- Section 86 defines “cruelty” for the purposes of Section 85, retaining substantially the same two-limbed definition that Section 498A of the IPC used:
- (a) any wilful conduct likely to drive the woman to commit suicide, or to cause grave injury or danger to her life, limb, or health (whether mental or physical); or
- (b) harassment of the woman with a view to coercing her, or any person related to her, to meet any unlawful demand for property or valuable security, or on account of failure to meet such a demand.
In substance, the legal test for cruelty remains largely unchanged from the IPC era. What has changed is structural: separating the offence (Section 85) from its definition (Section 86) offers slightly cleaner drafting, though it does not, on its own, resolve any of the substantive debates that surrounded Section 498A for four decades.
Why This Provision Exists
The rationale behind Section 85 and 86 mirrors the concerns that drove Section 498A’s original enactment. Domestic cruelty, particularly dowry-related harassment, was historically difficult to prosecute because it typically occurs within the home, without witnesses, and often escalates gradually rather than through a single identifiable incident. The two-limbed definition under Section 86 was designed to capture both dimensions of this harm: cruelty severe enough to endanger life or drive a woman toward self-harm, and harassment specifically tied to unlawful demands, most commonly dowry.
Parliament’s 1983 amendment introducing Section 498A was itself a legislative response to a documented rise in dowry deaths through the 1970s and early 1980s, at a time when existing provisions on hurt, assault, and abetment of suicide were widely considered inadequate to capture the specific, cumulative nature of domestic harassment. The BNS’s retention of this same architecture in 2023 reflects a legislative judgment that the underlying social problem dowry-linked and general domestic cruelty toward married women remains sufficiently pressing that the core protective framework should not be diluted, even as the broader criminal code around it was substantially rewritten.
This is a cognizable and non-bailable offence, meaning police can arrest without a warrant and bail is not a matter of right ; a structural choice reflecting Parliament’s judgment, both in 1983 and again in 2023, that domestic cruelty cases require swift intervention given the vulnerability of the complainant and the risk of continued harm within the same household.
The Misuse Debate
No discussion of this provision under either the IPC or the BNS is complete without addressing the long-running debate over its misuse. Because the offence is cognizable and non-bailable, and because it often names not just the husband but his relatives as co-accused, courts and commentators have repeatedly flagged concerns about the provision being used to implicate extended family members in matrimonial disputes with limited direct evidence, sometimes as a pressure tactic in divorce or custody negotiations.
The Supreme Court itself acknowledged this tension explicitly in several judgments, describing what it termed “legal terrorism” in some instances where the provision appeared to be invoked less to seek protection from genuine cruelty and more to gain leverage in a breaking-down marriage. At the same time, women’s rights advocates and several National Crime Records Bureau data points have consistently pointed to underreporting of genuine domestic cruelty as the more persistent and larger problem, cautioning against reforms that make the provision harder to invoke and thereby discourage women who have experienced real harm from coming forward at all. This tension between preventing misuse and preserving access to genuine protection is precisely what subsequent Supreme Court guidelines have tried, with mixed success, to resolve.
The Supreme Court’s response to these concerns has shaped how the provision is enforced today, and this jurisprudence remains directly relevant to Sections 85 and 86, since the underlying legal test for cruelty is unchanged.
Arnesh Kumar v. State of Bihar (2014)
Perhaps the most significant judicial intervention concerning this offence, the Supreme Court in Arnesh Kumar issued binding guidelines requiring police to apply a checklist under Section 41 of the Code of Criminal Procedure before making an arrest in cases involving offences punishable with imprisonment of less than seven years squarely covering what was then Section 498A. The Court held that arrest should not be automatic or mechanical merely because a complaint has been filed, and directed magistrates to record reasons in writing before authorising further detention. This judgment was a direct response to widespread reports of automatic arrests of husbands and in-laws upon the mere registration of a complaint, without preliminary verification.
Rajesh Sharma v. State of Uttar Pradesh (2017)
The Supreme Court went further, directing the constitution of Family Welfare Committees to review complaints under Section 498A before arrests were made, aiming to filter out cases that appeared to be filed with an intent to harass rather than genuinely seek protection. This directive proved controversial and was subsequently modified.
Social Action Forum for Manav Adhikar v. Union of India (2018)
A subsequent bench partially diluted the Rajesh Sharma directions, holding that the mandatory Family Welfare Committee mechanism could not be judicially imposed as a blanket procedural requirement, since it risked delaying legitimate cases and effectively diluting statutory protection Parliament had intended. The Court reaffirmed the Arnesh Kumar safeguards on arrest, while stepping back from procedural filters that risked making the provision harder to invoke for genuine complainants.
This line of cases illustrates the delicate balance courts have tried to strike: preventing mechanical, retaliatory arrests, without diluting the provision’s core protective purpose. That balance remains just as relevant under Sections 85 and 86 as it was under Section 498A, since the BNS did not alter the underlying tension the case law was responding to.
What Counts as Cruelty: Judicial Interpretation
Beyond the misuse debate, courts have also had to define, case by case, what actually constitutes “cruelty” within the meaning of the provision a term the statute defines broadly but does not exhaustively illustrate.
Indian courts have held that cruelty need not be physical; sustained mental harassment, humiliation, and emotional abuse have repeatedly been recognised as falling within the provision’s scope, particularly where such conduct is shown to be part of a pattern rather than an isolated incident. In Girdhar Shankar Tawade v. State of Maharashtra (2002), the Supreme Court clarified that the cruelty contemplated under the provision must be distinguished from ordinary wear and tear of marital life the conduct must be of such a nature as to be likely to drive the woman to suicide or cause grave injury, or must specifically relate to unlawful demands, rather than encompass every instance of marital friction or disagreement.
Courts have also clarified that a single act of cruelty is rarely sufficient to sustain a conviction; the offence typically requires demonstrating a course of conduct, reflecting Parliament’s intent to capture sustained patterns of domestic abuse rather than isolated marital disputes or arguments. At the same time, in cases involving dowry-related harassment, courts have been willing to infer cruelty from proximate demands made shortly before a woman’s death or serious injury, recognising that direct evidence of sustained harassment is often difficult to produce given that such conduct typically occurs entirely within the home, away from independent witnesses.
This interpretive approach insisting on a pattern of conduct while still recognising non-physical harm as legally cognisable, yet distinguishing genuine cruelty from ordinary marital discord represents one of the more carefully calibrated aspects of the provision’s judicial development. It resists the temptation to read “cruelty” narrowly as only physical violence, while still guarding against trivial or one-off domestic disagreements being escalated into criminal complaints.
Sections 85–86 in the Context of the Broader BNS Framework
It is worth situating Sections 85 and 86 within the BNS’s broader restructuring of offences against women. The new code retains and, in some instances, enhances penalties for offences such as dowry death (now Section 80, corresponding to the erstwhile Section 304B IPC), and continues to criminalise dowry demands separately under the Dowry Prohibition Act, 1961, which operates alongside the BNS rather than being subsumed into it.
This layered framework cruelty under Sections 85–86, dowry death under Section 80, and dowry demands under a separate special statute means a single set of facts, such as sustained harassment escalating to a woman’s death, may attract charges under multiple provisions simultaneously, each targeting a different facet of the same underlying pattern of abuse. In practice, this often means an accused facing trial under Section 80 for dowry death will frequently also face charges under Section 85–86 for the cruelty that preceded it, since courts have long recognised that dowry deaths rarely occur without a documented pattern of prior harassment a pattern that Section 86’s own definition was specifically designed to capture as evidence.
The BNS also retains the presumption under what corresponds to the erstwhile Section 113A of the Indian Evidence Act now carried forward in the Bharatiya Sakshya Adhiniyam, 2023 that where a married woman dies by suicide within seven years of marriage and is shown to have been subjected to cruelty by her husband or his relatives, courts may presume that such cruelty contributed to the suicide. This evidentiary presumption works in tandem with Sections 85–86, easing the burden on prosecution in cases where establishing a direct causal link between cruelty and a woman’s death would otherwise be extremely difficult.
Conclusion
Sections 85 and 86 of the Bharatiya Nyaya Sanhita carry forward, almost unchanged in substance, a provision that has spent four decades trying to hold two things true at once: that domestic cruelty against women is real, underreported, and often invisible from outside a marriage, and that any law addressing it must guard against becoming a weapon in disputes it was never meant to settle. The renumbering under the BNS was an opportunity to resolve some of this tension through clearer drafting or additional procedural safeguards written directly into the statute, rather than left to case law. That opportunity was largely not taken.
In my assessment, this continuity is not necessarily a failure. The judicial safeguards developed under Arnesh Kumar and its successors remain good law and continue to apply with equal force to Sections 85 and 86, meaning the protective architecture around the provision has not weakened. But it does mean the provision’s long-standing debates genuine protection versus potential misuse, physical harm versus sustained mental cruelty remain exactly where they were before the BNS, now simply carried under a new section number. Real reform, if it comes, will likely have to come from further judicial clarification or legislative amendment, not from renumbering alone.
