Misuse Of Section 85 Of BNS

Indian penal code,1860 amended to Bhartiya Nyaya Sanhita 2023

Section 498a of IPC which was added through 1983 amendment act, talked about the cruelty faced by women in their lives, which in India was a very needed act.

According to the survey by National Crime Record Bureau 2020, the cruelty rate by husband and his relatives on women is 19.3%.

National Family Health survey 5, 2019-2020 have reported that the gender violence across various states in India ranging from 6 to 43.7%

The crime against women have been on a raging increase since forvever, and thus section 489a of IPC which is now section 85 of BNS is a blessing for the women who are actually suffering from such violence.

But the provision only focuses on the violence and not the misuse of it.

According to a study by maitreya.ac.in, the percentage of false cases filed under domestic violence and cruelty against the husband and his relatives have increased gradually since 2016.

2016- 4.95%
2019- 5.48%
2022- 5.65%

According to NCRB
A total of 111,549 cases were registered out of which 5,520 were closed by police citing as false and overall 16151 cases were closed by police either because they were fake or there was a mistake of fact or law or there was a civil dispute.

The above data prove that the misuse of sec85 and other gender specific acts like Protection against domestic violence act 2005, Dowry Prohibition act 1961 etc. These act in particular do not provide any provision for protection of men against and harassment or violence and in addition do not provide any protection if the acts are misused against them.

Introduction:
Social evils against women have been existing for the longest known past, and no expressed oppose to such acts has ever been reported until 1983, 123 years after Indian Penal Code was enacted.

Section 498a of IPC was added to IPC through 1983 amendment act. The act falls under [Chapter XX-A OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND]

This section primarily talks about the cruelty against a women by her husband or relatives of the husband. The section is gender specific in nature and thus only women are subjected to seek relief under this section.

And for the purpose of this act "Relatives" mean both male as well as female.

(Section 498a of IPC was the origin and section 85 of BNS is the amendment of the entire act)

• Section 85 of BNS:
• 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.
• The provision further adds that the offence under this section is:
  • Cognizable (the offender can be arrested without a warrant)
  • Non-bailable (the offender shall apply in court to obtain bail)
  • Non-compoundable (the complaint, once filed, cannot be withdrawn)
• Section 86 of BNS:
• Cruelty defined: For the purpose of section 85, "cruelty" means:
  • Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or cause grave injury or damage to life, limb, or health (whether mental or physical) of the woman;
  • 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.
• Any offence committed under this section, the procedure given under Section 41A of Code of Criminal Procedure is to be followed.
• Explanation:
• Section 85 primarily states the inclusion of 2 relations of the woman:
  • Husband
  • Relatives of the husband
• If any of these two mentioned persons subjects a woman to cruelty, then he/she shall be punishable under this section.
• "Cruelty" on the other hand is defined under Section 86 of BNS, which focuses on two acts:
  • Wilful conduct that drives a woman to commit suicide
  • Harassment with a view to coerce the woman or any of her relatives to meet any unlawful demand.
• Section 113A of the Indian Evidence Act and Section 117 of the Bhartiya Sakshya Adhiniyam relate to the presumption of abetment of suicide by a married woman. The section states the question of whether the commission of suicide by a woman has been abetted by her husband or any relatives of the husband.
• Relevant Case:
• Shanti Behal v. State (20 January 1994): There were allegations against the husband and the mother-in-law of harassment, cruelty, and maltreatment. The victim (bride) had written to her parents, a few days before the incident, the apprehension of danger to her life. In her dying declaration, her mother-in-law was implicated for burning her, and both she and the husband were charged for harassing her. The Mother-in-law (Shanti) was charged for the offence under section 302 and 498A, and the husband (Jagdish) was charged for the offence under section 498A, IPC.
• Essential Elements of the Section:
• The aggrieved person shall be a woman (because it is a gender-specific provision).
• The offender must be either:
  • Her husband
  • The relatives of her husband
• Such husband or the relatives of the husband must subject the woman to cruelty.

Meaning Of Cruelty

The general meaning of cruelty is "a behaviour that deliberately causes pain or distress to people or animals" in other world any act of a person that causes harm or hurts another person or any animals. There can be many forms of cruelty, from physical to emotional. Physical cruelty is harming someone that also inflicts pain.

Under section 86 of BNS cruelty under this section has a two fold dimension, firstly "any wilful act that drives the woman to commit suicide."

The provision clearly specifies "wilful" in order to show that the harm caused to the woman was a wilful act and not under any pressure, and such act drives the woman to commit suicide which means that the act of man was the responsible reason for the woman to end her life.

Secondly, the provision defines, "harassment of the woman 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".

The harassment of a woman for above mentioned reasons amounts to cruelty.

According to the provision of section 86, a clear view of what counts as cruelty can be concluded.

Other Acts And Sections In Relation To Section 85 And 86 Of IPC

1. Protection Against Domestic Violence Act 2005 This law is about the protection of women from any type of domestic violence. The act entirely is a gender-specific act and does not have any provision for the protection of any other gender other than women. The act also specifies the meanings of all the words used under the same.
   • Section 2(g) states the section in which Domestic Violence is defined.
   • Section (3) defines Domestic Violence as:
   • Any act, omission, and conduct of the respondent shall constitute domestic violence:
   • a. If it harms, injures, or endangers the health, safety, life, limb, or well-being, whether mental or physical, of the aggrieved person.
   • b. Includes all kinds of abuse means:
     • Physical
     • Mental
     • Verbal
     • Emotional
     • Economic abuse
   • c. Harassment, harms, injures with a view to coerce her or to meet any unlawful demand for dowry or other property or valuable security.
   • d. Or threatening the aggrieved person by the above-mentioned reasons.
   • Physical abuse means any act or conduct which causes bodily pain, harm, or danger to life, limb, or health, and includes assault, criminal intimidation, and criminal force.
   • Sexual abuse means any conduct of a sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of the woman.
   • Verbal and emotional abuse includes humiliation, insults, name-calling, and repeated threats to cause physical pain.
   • Economic abuse includes the deprivation of all economic or financial resources and the disposal of all valuable assets, including her "Stridhan."
   • Section 32 Any offence committed under this act is cognizable and non-bailable.
      
2. Dowry Prohibition Act, 1961
   Sec86 (b) of BNS states that the harassment of woman with view of coercing the woman or any person relating to her to meet any unlawful demand for any property and valuable security.

This provision is elaborated in Dowry Prohibition Act, 1961.
Section 2 defines dowry as:
Any property or valuable security given or agreed to be given either directly or indirectly:

1. by one party to a marriage to other party to the marriage; or
2. by the parents of either party to a marriage or by any other person , to either party to the marriage or to my person;
3. at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

The section states every situation of giving or receiving dowry which under section 86(b) can be concluded as unlawful demand.

Section 8
Offences to be cognizable for certain purposes and to be bailable and non-compoundable:

1. The Code of Criminal Procedure, 1973 (2 of 1974) shall apply to offences under this Act as if they were cognizable offences:
   • For the purpose of investigation of such offences;
   • For the purposes of matters other than:
     • Matters referred to in section 42 of that Code;
     • The arrest of a person without a warrant or without an order of a Magistrate.
2. Every offence under this Act shall be [non bailable] and non-compoundable.
3. The provision states certain conditions under which the offences shall be cognizable, and the offences under the Act are non-bailable and non-compoundable.
    
4. Criminal Procedure Code, 1973
   • Section 125(1) of CrPC states maintenance of his wife, who is unable to maintain herself. The primary objective of this Act is to provide maintenance to the dependents of the family.
   • For the dependent woman, if she files a complaint against her husband or any relative of the husband under any of the above-mentioned sections, she is also liable for interim compensation if ordered by the court.
      
5. Interim Compensation:
   • There are several provisions allowing the spouse to obtain interim compensation. The aggrieved party has the right to demand compensation by filing an application in the court. The court has discretion on whether to provide interim compensation or not.
   • Provisions that talk about the allowance of interim compensation are:
     • Section 24 of the Hindu Marriage Act, 1955;
     • Section 125(1) of the Criminal Procedure Code (CrPC), 1973;
     • Section 36 of the Special Marriage Act, 1954;
     • Section 39 of the Divorce Act, 1869;
     • The Protection of Women from Domestic Violence Act, 2005.
   • The concept of interim compensation is a support towards females and acts as a major component of greed that leads to filing fake cases.
6. Misuse of Section 85, BNS:
   • Section 85, as mentioned above, is a gender-specific act and hence acts only in favour of women. The Act emphasises the protection of women from all sorts of cruelty that harm their mental or physical being.
   • So now the main question that comes is - why are these fake cases being filed?
   • The gender-specific laws are all in favour of women and provide them an upper hand in cases which directly or indirectly lead to increased numbers of fake cases (the status of which are provided above). The burden of proof under such cases lies on the accused.
   • Some underlying reasons for the increase of fake cases, as observed, may be:
     • Laws favouring women;
     • The burden of proof always lies on the accused;
     • The interim compensation and the final compensation awarded to the victim;
     • Such fake cases can also be used as grounds for divorce;
     • To threaten the accused person and his family.
7. Relevant Cases:
   • Rajesh Sharma & Ors. v. State of U.P. (2017): The Court directed the formation of Family Welfare Committees in every district to scrutinize complaints under Section 498A before arrests. This aimed to prevent frivolous allegations from leading to unwarranted arrests.
   • Sushil Kumar Sharma v. Union of India (2005): The Court noted that Section 498A was being used more as a weapon than a shield, leading to harassment of innocent family members. It called for measures to curb its misuse.
   • Preeti Gupta v. State of Jharkhand (2010): This judgment highlighted the need to review Section 498A, emphasising that false allegations could harm family structures and create social unrest.
   • Arnesh Kumar v. State of Bihar (2014): The Court mandated that police officers conduct a thorough inquiry before arresting someone under Section 498A. It also emphasised the necessity for magistrates to justify detentions, aiming to avoid unnecessary arrests and misuse.
   • Geeta Mehrotra v. State of U.P. (2012): The Court quashed an FIR filed under Section 498A due to lack of substantial evidence, noting that the case arose from marital discord rather than genuine cruelty.

These cases highlight the judicial approach to balancing the protection of genuine victims with preventing the misuse of legal provisions. Efforts such as counseling, mediation, and legal education have been suggested to address these issues comprehensively.

Suggestions:
Suggestions to address the issue of misuse of Section 85 of BNS while maintaining the main aims and objectives of the provision are:

• Strict examination of complaints
  • Introduction of preliminary examination of complaints by the police or magistrate in order to avoid fake cases.
  • Requirement of evidence to support the case.
• Penalties for false complaints
  • Introduction of penalties in the law by amendments for filing false cases with malicious intention.
• Gender-Neutral Provisions
  • The provisions of the act should be made more gender-neutral, providing protection to both men as well as women.
• Shifting burden of proof
  • In cases where no prior evidence is present or the police or magistrate is not satisfied with the case, the burden of proof shall be shifted to the victim rather than the accused.
• Education and awareness
  • Proper education and awareness programs to educate the public on the procedure and the requirements of the law and how this law is being misused.

Conclusion
In conclusion, Section 85 of Bhartiya Nyaya Sanhita (BNS) 2023 is a provision provided to protect and safeguard women from any type of cruelty by her husband or the relatives of her husband. The section addresses an old and rooted social issue and has provided a resolution to such countless abuses faced by women.

However, the nature of this act being gender specific and lake of provision to safeguard from misuse has lead to increased number of false cases.

While this provision as well as the Domestic Violence Act were a step taken towards the protection of women from such social evils, the lack of gender equality has lead to a rise in the number of false cases which highlights the need for legal reforms. Such reforms could include stricter examination of complaints, provisions to address malicious intentions, and to protect innocent individuals. Balancing the protection of women with the prevention of misuse is essential to uphold the integrity of the legal system and ensure justice for all.

References:

• The Indian Penal Code by Prof. T Bhattacharya
• Bare Act, Indian Penal Code, 1869
• Bare Act, Bhartiya Nyaya Sanhita, 2023
• data: r/IndiaSpeaks
• https://www.livelaw.in

Written By:

• Saniya Pathan, Student of 4th year BA LLB at University College Of Law, Mohanlal Sukhadia University, Udaipur
• Mohammad Ali Bashar, Student of 4th year BA LLB at University College Of Law, Mohanlal Sukhadia University, Udaipur