Section 498A IPC vs Section 85 BNS — Cruelty by Husband or Relatives

# Section 498A IPC vs Section 85 BNS — Cruelty by Husband or Relatives

Section 498A IPC is one of the most discussed and debated provisions in Indian criminal law. It was introduced in 1983 to protect married women from cruelty by their husbands and in-laws, particularly in the context of dowry demands. It has been described by the Supreme Court as both a necessary shield against domestic violence and a weapon of misuse. Under the BNS, the corresponding provision is **Section 85**. This page provides an educational comparison.

Section Text

Section 498A IPC (Indian Penal Code, 1860)

> "Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

>

> Explanation — For the purpose of this section, 'cruelty' means — (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

Section 85 BNS (Bharatiya Nyaya Sanhita, 2023)

> Section 85 BNS retains the offence of cruelty by husband or relatives in substantially the same terms as Section 498A IPC, with the same definition of cruelty (both limbs — conduct likely to drive to suicide/injury and harassment for dowry) and the same punishment of imprisonment up to three years with fine.

Plain Language Explanation

This provision makes it a criminal offence for a husband or his relatives to subject a married woman to cruelty. "Cruelty" is defined in two ways:

1. **Physical/mental cruelty:** Any wilful conduct that is likely to drive the woman to commit suicide or cause grave injury or danger to her life, limb, or health (mental or physical).

2. **Dowry-related harassment:** Harassment with the purpose of coercing the woman or her relatives to meet unlawful demands for property or valuable security (dowry), or harassment because of failure to meet such demands.

The provision was revolutionary when introduced in 1983, as it provided women in abusive marriages a specific criminal remedy. It remains one of the most frequently invoked criminal provisions in matrimonial disputes.

Key Ingredients / Elements

1. **The accused must be the husband or a relative of the husband.**

2. **The victim must be a woman (wife of the accused or wife of the relative).**

3. **The accused must have subjected the woman to cruelty**, which means either:

- Wilful conduct likely to drive her to suicide or cause grave injury/danger to life, limb, or health (mental or physical); OR

- Harassment with a view to coercing her or her relatives to meet unlawful demands for property/valuable security, or on account of failure to meet such demands.

IPC vs BNS Comparison Table

| Feature | Section 498A IPC | Section 85 BNS |

|---|---|---|

| **Offence** | Cruelty by husband/relatives | Cruelty by husband/relatives |

| **Punishment** | Up to 3 years, and fine | Up to 3 years, and fine |

| **Definition of cruelty** | Two limbs: (a) conduct likely to drive to suicide/injury, (b) dowry harassment | Same two limbs retained |

| **Cognizable** | Yes | Yes |

| **Bailable** | Non-bailable | Non-bailable |

| **Triable by** | Magistrate First Class | Magistrate First Class |

| **Compoundable** | No (non-compoundable) | Non-compoundable |

| **Substantive change** | — | No substantive change |

Key Differences and Observations

The BNS has **retained Section 498A IPC verbatim** in Section 85 BNS. The definition of cruelty, the punishment, and the procedural attributes remain identical. The extensive body of judicial precedent — including the safeguards against misuse developed by the Supreme Court — continues to apply.

This is notable because there was considerable debate during the drafting of the BNS about whether Section 498A needed reform to address misuse concerns. Ultimately, the legislature chose to retain the provision without modification, signalling that any reforms to address misuse must come through judicial interpretation and procedural safeguards rather than substantive changes to the law.

The Supreme Court's guidelines in Arnesh Kumar v. State of Bihar (2014) — requiring that arrests under Section 498A should not be automatic and should follow proper procedures — remain applicable under Section 85 BNS.

Important Judgments

1. **Arnesh Kumar v. State of Bihar (2014) 8 SCC 273** — The landmark judgment directing police not to automatically arrest the accused in Section 498A cases. The Court mandated that police must follow a checklist before arresting, and magistrates must satisfy themselves about the necessity of arrest before authorising detention.

2. **Rajesh Sharma v. State of UP (2017) 8 SCC 398** — The Supreme Court constituted Family Welfare Committees to examine complaints under Section 498A before any arrest, to prevent misuse. However, this was later modified in Social Action Forum for Manav Adhikar v. Union of India (2018).

3. **Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281** — The Supreme Court acknowledged the misuse of Section 498A but held that the remedy lies in preventing misuse, not in striking down the provision. The Court observed that the provision cannot be declared unconstitutional merely because of its misuse.

4. **Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667** — The Court observed that a realistic insight into the nature of Section 498A complaints is needed and that the tendency to rope in all family members, including aged parents and siblings living abroad, must be curbed.

5. **Inder Raj Malik v. Mrs. Sumita Malik (1986)** — One of the earliest cases discussing Section 498A, the Court upheld the constitutional validity of the provision and defined the scope of "cruelty" under both limbs.

Practical Implications

- **For legal practitioners:** Section 498A/85 cases require a nuanced approach. For the prosecution, evidence of specific instances of cruelty (medical records, witnesses, complaints, electronic evidence) is essential. For the defence, challenging the specificity of allegations, establishing the timeline, and demonstrating compliance with Arnesh Kumar guidelines are key strategies.

- **For accused persons:** The Arnesh Kumar guidelines provide significant protection against automatic arrest. Anticipatory bail is frequently sought and granted in Section 498A cases, particularly where the allegations appear to be part of a matrimonial strategy.

- **For complainant women:** Maintaining a record of instances of cruelty (photographs of injuries, medical records, complaints to women's cell, text messages, recordings) significantly strengthens the case. Reporting to the Protection Officer under the Domestic Violence Act, 2005, provides an additional civil remedy.

- **For law enforcement:** Police must follow the Arnesh Kumar guidelines scrupulously. They must not arrest automatically upon receiving a 498A complaint. A proper investigation, including recording statements of both parties and examining evidence, should precede any arrest.

Frequently Asked Questions

Has the punishment for cruelty by husband changed under BNS?

No. The punishment remains imprisonment up to 3 years with fine. Section 85 BNS is identical to Section 498A IPC in all material respects.

What safeguards exist against misuse of Section 498A/Section 85 BNS?

The Supreme Court in Arnesh Kumar v. State of Bihar (2014) directed that: (a) police must not automatically arrest the accused, (b) police must follow a checklist/procedure before arrest, (c) magistrates must satisfy themselves about the necessity of arrest, and (d) non-compliance by police officers can lead to departmental action. These safeguards apply equally to Section 85 BNS.

Can in-laws living in a different city be charged under this section?

Yes, relatives of the husband can be charged regardless of where they live. However, the Supreme Court has cautioned against roping in all family members without specific allegations of cruelty against each person. The complaint must contain specific allegations of cruelty by each accused, not just a general allegation against "all family members."

Is Section 498A/85 BNS available for live-in relationships?

No. The provision specifically applies to the "husband or relative of the husband" — it is applicable only to legally married women. Women in live-in relationships can seek remedies under the Protection of Women from Domestic Violence Act, 2005 (which covers relationships "in the nature of marriage") or other general criminal provisions.

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*This content is for educational and informational purposes only. It does not constitute legal advice. For specific legal concerns, consult a qualified legal professional. Content is compliant with Bar Council of India guidelines on legal information sharing.*