Judicial safeguards or overreach? Rethinking the Supreme Court’s approach to Section 85 BNS

The Supreme Court’s decision in Shivangi Bansal v. Sahib Bansal (2025) by endorsing the Allahabad High Court’s “cooling-off” directions that bar arrests or coercive action for a period of two months and direct referral of cases to family-welfare committees, marks a significant shift in how the criminal justice system will treat allegations of cruelty within marriage.

At first blush, the order reads as a salutary protection against abuse of the law. In reality, however, it substitutes a blanket procedural pause for the careful, fact-sensitive balance the law requires. It removes the possibility of immediate police action even in cases where victims face imminent danger. That result has urgent consequences for gender justice, law enforcement and the constitutional promise of equal protection.

Section 498-A of the Indian Penal Code was introduced in 1983 to respond to a familiar, tragic reality: cruelty inside marriage, including dowry-related harassment, that in many cases culminates in grievous injury or death. Parliament’s objective, reinforced by complementary laws such as the Dowry Prohibition Act, 1961, and later the Protection of Women from Domestic Violence Act, 2005, was to create a criminal safety-net for married women who often had no institutional recourse within the private sphere of the family. With the codification changes under the Bharatiya Nyaya Sanhita, the protective core of 498-A survives as Section 85 BNS (and Section 86 defines “cruelty”), retaining the penal structure and the non-bailable, cognizable character of the offence. That continuity underscores Parliament’s intent to keep criminal remedies available where domestic cruelty is alleged.

The Allahabad High Court’s guidelines (2022), later endorsed by the Supreme Court in Bansal, require a “cooling-off” period of two months during which no arrest or coercive action shall be taken and mandate referral to district family welfare committees. The stated aim is to prevent misuse of an emotive, non-compoundable provision and to promote conciliatory dispute resolution where appropriate. But the order operates as a near-absolute bar on arrest across the board, applied to a central penal provision without a granular, case-specific enquiry. The decision was handed down in the course of disposing of a matrimonial dispute; there is little sign in the judgment that the State was heard in detail about administrative capacity, safety protocols, or the wider socio-legal implications of suspending arrests under a central law.

Official statistics show different linked realities: (i) large numbers of cases are registered under “cruelty by husband or his relatives” and (ii) convictions are a small fraction of cases that enter the system. The National Crime Records Bureau (NCRB) Crime in India 2022 records over one lakh cases under the head of cruelty by husband/relatives in 2022; court disposal tables show that conviction rates in cruelty categories are in the low double digits (NCRB’s tabulations for court disposals indicate a conviction rate figure in the low teens for 2022). The combined reading of administrative and survey data is unambiguous: many victims come forward, many more do not and convictions represent only a sliver of the social problem.

NCRB data further shows that, even as registered offences under Section 498-A/85 BNS rose from about 1.1 lakh in 2015 to over 1.4 lakh in 2022, arrests actually declined from nearly 1.9 lakh to 1.45 lakh in the same period. This suggests that existing statutory and judicial safeguards - such as the 2008 CrPC amendment, Arnesh Kumar v. State of Bihar (2014) and Satender Kumar Antil v. CBI (2022) - have already rationalised arrest powers without extinguishing access to justice. A further judicial moratorium is thus not only unnecessary, but actively harmful.

Moreover, the Humsafar Women’s Centre's field research on Section 498-A has cautioned against simplistic readings of rising complaint numbers as “misuse.” Humsafar’s work notes that an increase in complaints can reflect greater awareness, access or willingness to report, rather than proof of fabricated litigation. Any policy response must therefore distinguish between false complaints (which do exist) and structural barriers to convictions (which are pervasive).

The Supreme Court has historically acknowledged both the protective purpose of the anti-cruelty provision and the risk of abuse. In Sushil Kumar Sharma v. Union of India (2005), the Court defended the constitutional validity of Section 498-A while warning of its misuse. In Preeti Gupta v. State of Jharkhand (2010), the Court flagged over-implication of relatives and frivolous pleadings. In Arnesh Kumar v. State of Bihar (2014) the Court issued procedural constraints, requiring police to apply the Section 41 Code of Criminal Procedure (CrPC) checklist and to avoid automatic arrests, precisely to curb both arbitrary detention and the weaponisation of false complaints. Those precedents sought a middle path: protect victims but prevent mechanical incarceration. Bansal abandons that calibrated approach by converting a precaution (Section 41/41A checks and judicial oversight) into a blanket moratorium.

This pattern of judicial experimentalism is not new. In Rajesh Sharma v. State of UP (2017), the Court had similarly directed complaints under Section 498-A to be first scrutinised by family welfare committees with a one-month cooling-off period. Those directions were widely criticised as regressive and beyond judicial competence. Within a year, in Social Action Forum for Manav Adhikar v. Union of India (2018), a three-judge Bench rolled back the experiment and restored the victim’s right to immediate criminal process. By endorsing the Allahabad High Court’s guidelines in Bansal, the Supreme Court risks repeating the same error under a new statutory label.

There are three predictable harms that arise from a categorical two-month pause on arrests:

1. Immediate risk to survivors: Arrest powers are sometimes the only immediate method to remove an accused from a household where the complainant faces ongoing violence or coercive control. Delaying arrest can leave victims exposed during the most dangerous window.

2. Chilling of reporting: The promise of police protection, that the State will respond, is a core incentive for women to report. Neutralising immediate remedies will deter reporting and embolden abusers.

3. Entrenchment of procedural inaction: Where policing is weak, a judicial freeze becomes a structural permission for non-investigation. The Arnesh Kumar safeguards were meant to force deliberation, not to provide blanket immunity. This blanket pause also disregards the fact that following Lalita Kumari v. State of UP (2013), matrimonial disputes already fall within the category of cases that can undergo a preliminary inquiry before FIR registration - a safeguard that the BNSS continues. The Bansal approach blurs that distinction and hands an operational advantage to accused persons even in strong cases of abuse.

Referral to family welfare committees can make sense in appropriate custody/divorce contexts. But expecting district-level committees to function as a triage mechanism for criminal complaints is optimistic at best. Most districts lack the training, independence or resources to adjudicate allegations of criminal cruelty, to ensure victim safety, or to certify whether a case should proceed with criminal investigation. Moreover, mediation frameworks are inherently ill-suited where the power imbalance includes threats, coercion or potentially lethal harm. The risk is that committees recast criminal harms as “family problems” to be mediated away. Live experimentation, where such bodies exist, often shows delays, back-channel settlements and pressure on complainants to withdraw criminal complaints.

If the worry is genuine about misuse of criminal law, the answer is reform that protects rights, not judicial fiat that suspends remedies:

• Enforce Arnesh Kumar and  DK Basu safeguards: Police should be required to record contemporaneous reasons under Section 41/41A CrPC and follow DK Basu arrest protocols; where danger is imminent, arrest must remain available and must be swift.

• Strengthen investigations, not remove them: Invest in specialised domestic-violence units in police districts, social-worker support at first reporting, forensic evidence-gathering and training so complaints are investigated robustly rather than discarded.

• Improve protective infrastructure: Fast interim relief, temporary shelter and witness protection for complainants must be available immediately on filing, not delayed by committees.

• Mandate data-driven reviews: Courts should base systemic observations on empirical studies (NCRB and NGO field reports such as Humsafar) rather than extrapolating from single matrimonial files. Where Parliament has legislated after deliberation, courts should be cautious about effectively suspending central penal statutes without broader consultation.

The Bansal ruling exposes a tension that democracy must resolve: how to guard against both the misuse of criminal laws and the denial of redress to those who need them most. Judicial sensitivity to false complaints is legitimate; wholesale, time-bound immunities are not. If the State’s duty is to protect the vulnerable, then the right response to claims of misuse is stronger investigation, rigorous procedural safeguards and accountability, not a two-month moratorium that leaves survivors exposed. In the balance between liberty and protection, the scales must not tip in a way that treats gendered violence as a mere domestic dispute. To preserve the promise of gender justice, courts should tighten process defects, insist on better policing and respect Parliament’s carefully crafted protections, not eclipse them.

The Court would, therefore, do well to revisit Bansal just as it revisited Rajesh Sharma, recognising that while misuse must be checked, it cannot be at the cost of a woman’s right to prompt recourse under criminal law.

Shivam Jadaun is a tech policy lawyer based in Delhi.

Views are personal.