In its judgment, Shivangi Bansal vs Sahib Bansal, that was delivered in late July, the Supreme Court of India has effectively endorsed the suspension of the arrest or coercive action under the anti-cruelty law in Section 498-A of the erstwhile Indian Penal Code (IPC). Apart from being predicated on false premises, the judgment sets a dangerous precedent for both criminal justice and gender equality.
In many marriages, women suffer great levels of inequality. Apart from being discriminated against and stereotyped, they also face harassment and violence including torture. To redress violence in the domestic sphere, the Parliament has brought in laws such as Section 498-A in the IPC in 1983. Section 498-A IPC (Section 85 of the new Bharatiya Nyaya Sanhita) penalises cruelty against women, by her husband or his relative with imprisonment for three years and a fine. Cruelty is defined wide enough to include dowry harassment and driving the woman to suicide or injury to life or health.
The statement of objects of the Amending Act which brought in the law has underlined the need to expand the scope of the law to apply to all kinds of cruelty within marriage. This was done in the wake of a large number of dowry deaths and also noting that cruelty cases “culminate in suicide by, or murder of, the helpless woman concerned, constitute only a small fraction of the cases involving such cruelty”. Penal legislation such as the Dowry Prohibition Act, 1961 were enacted to operate harmoniously with other laws enacted for violence against women. Therefore, Parliament, as the policymaker, after legislative deliberation and study, has chosen to enact the anti-cruelty law in this particular socio-cultural context.
Blanket protection from arrest
However, it is without properly appreciating these social realities that the Allahabad High Court directed that no arrest or coercive action must be taken against the accused persons for a ‘cool-off’ period of two months from the complaint. It also directed the district-level constitution of family welfare committees, to which cases are directed to be transferred to. These directions are now endorsed by the Supreme Court, amounting to a temporary but blanket protection for the accused from arrest or coercive action, when it is permitted by the criminal law.
Importantly enough, this was done in an individual dispute without examining in detail the socio-political implications of such a suspension. Nor was the State government heard in elaborate detail — at least going by the top court’s judgment — before approving the suspension concerning a central criminal enactment. As a result of the judgment and its binding nature, even when there is overwhelming evidence of this serious crime, no arrests can be made by the police for at least a period of two months after its filing. This move also places a chilling effect on the complainants, who are otherwise already disadvantaged and discouraged from filing police complaints. The safety of the complainant is also severely put to risk. Further, the delay and inaction of the police in a proper investigation of complaints pertaining to ‘problems inside marriage’ are also legitimised by the judgment.
Now, it might be true that family law jurisprudence in the country could improve with alternate dispute resolution mechanisms such as mediation, rather than adversarial litigation. There is substance in the general argument that in cases of divorce or custody of children, conciliatory and effective resolution is more desirable than a long adjudicative process. Family cases are also highly sensitive and emotionally charged, which makes them much more suitable for the former than the latter. These aspects do not, however, apply when serious allegations of violence are made which come under the ambit of the penal law.
The question of ‘misuse’
The narrative of ‘misuse’ of the anti-cruelty law is often heard in popular discourse. Unfortunately, the Supreme Court itself has echoed a similar sentiment in a series of cases. In Preeti Gupta and Anr. vs State Of Jharkhand and Anr. (2010), the Court held that several cases which are not bona fide are filed under this provision. In Sushil Kumar Sharma vs Union Of India and Ors. (2005), the Court even said that “by misuse of the provision a new legal terrorism can be unleashed”. In Arnesh Kumar vs State Of Bihar and Anr. (2014), the Court already issued strict guidelines before arrest in anti-cruelty cases. It directed “the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters” under Section 41 of the earlier Criminal Procedure Code which deals with appearance before police officers. Such guidelines have already rendered police action difficult.
Yet, before the Court, apart from individual allegations, there is no concrete empirical data with evidence of any such ‘misuse’ of the anti-cruelty law. Every time the Court is faced with a dispute, it pertains to individual facts and counter versions. Being a complex social problem, this is also an area where the Court has much less institutional competence to conclude that there is overall ‘misuse’. To venture into the terrain of legislative wisdom, therefore, is outside the corners of judicial expertise.
One of the arguments often used is the allegedly low conviction rate in such cases, which is around 18% as per the National Crime Records Bureau (NCRB) data in 2022. This means that almost one out of five cases leads to conviction, which is much higher than those in several other offences. Even otherwise, a low conviction rate does not automatically translate into the misuse of the law. In a society such as ours, with close-knit and dominating family relationships, it is attributable to various factors such as the problems in investigation, systemic bias and social and familial pressure on the woman to settle matters. The requirement of family members having to testify in criminal court is a daunting task. Moreover, there is a high burden of proof of ‘beyond reasonable doubt’ in criminal cases in addition to the difficulty in finding evidence for violence in intimate spaces.
Survey findings
The NCRB recorded that at least 1,34,506 cases were registered under the law in 2022. The National Family Health Survey-5 has reported the ground reality — that there is a gross under-reporting of violence against women in several States. The rising number of cases, a report by the women’s centre Humsafar said, “may be attributed to growing awareness among women about the law”. Therefore, to draw conclusions of widespread misuse from individual cases “reflect institutional bias that exists within the criminal justice system” (A comprehensive study on the efficacy of Section 498-A).
Now, even if we assume that there are false cases filed under the law, the potential for misuse is inherent in any law. The veracity of the allegation under any criminal complaint can only be determined upon a proper investigation. Now, by selectively suspending the anti-cruelty law, the Court has made the victims of cruelty much more vulnerable than ever under India’s justice system. To subject certain criminal provisions to a more rigorous test than the others also has effects on the uniformity and the consistency of the criminal law.
The Court itself reiterated in Sushil Kumar Sharma (2005), wherein the constitutional validity of this very law was under challenge, the settled legal principle that misuse of a law is no ground to strike it down. Now, it has acted exactly against this idea, making rigid the possibilities of victims of cruelty to aspire for any meaningful semblance of justice.
Thulasi K. Raj is a lawyer at the Supreme Court of India
Published – August 12, 2025 12:16 am IST