The Supreme Court’s approval of a two-month ‘cooling period’ and referral to Family Welfare Committees in Section 498A/BNS 85 cases is seen as judicial overreach. 

• It risks delaying justice for victims and weakening the autonomy of criminal justice institutions.

Background of IPC Section 498A (now BANS Section 85)

• Context: Introduced in the 1980s amidst a surge in dowry-related deaths and cruelty against married women, often disguised as accidents.
• Purpose: To provide a stringent law protecting women from post-marital cruelty, acting as a “protective shield” for those without a voice.
• Provisions: Defines cruelty as mental or physical torture, abetment to suicide, or harassment for dowry by the husband or his relatives.
• Nature: It was a cognizable offence (police could arrest without a warrant) and non-bailable (bail was not a right but at the court’s discretion), making it a very strict law.

Misuse of the Provisions 

• Exaggeration of Minor Disputes: Minor marital disagreements were sometimes blown out of proportion to implicate the entire family.
• Filing of False Cases: False complaints were occasionally lodged, such as in cases involving extra-marital affairs.
• Judicial Recognition of Misuse: The Supreme Court termed the misuse of matrimonial cruelty laws as “legal terrorism”, highlighting the serious societal and legal consequences.

Judiciary’s Balancing Act

• Procedural Safeguards: To address the misuse while protecting genuine victims, the judiciary introduced procedural safeguards:
• Lalita Kumari vs. Government of UP (2014): The Supreme Court mandated a preliminary inquiry by the police before registering an FIR in matrimonial disputes.
  • This was to assess the seriousness of the allegations and prevent registration of frivolous cases.
• Arnesh Kumar vs. State of Bihar (2014): The Supreme Court restricted the police’s power of arrest in 498A cases. 
  • Police could no longer make immediate arrests upon FIR registration.
  • Instead, they had to justify the arrest using a checklist (e.g., necessity of arrest, risk of the accused absconding or tampering with evidence). 
  • Otherwise, they were to issue a notice under Section 41A, preventing “unnecessary arrests”.

Impact of these Judgments

• While the number of cases registered under Section 498A (now BANS Section 85) increased from 113,403 in 2015 to 144,019 in 2022, the number of arrests significantly decreased. 

Allahabad High Court’s “Cooling-off Period”

• Mukesh Bansal vs. State of UP (2022): The Allahabad High Court introduced a new “experiment”: A 2-month “cooling-off period” after an FIR was registered in such cases. 
  • During this period, no arrest or coercive action was to be taken against the husband or his relatives.
  • Instead, the matter was to be referred to a Family Welfare Committee (comprising social workers, retired officers) to mediate between the parties and submit a report before police could take further action.
• Shivangi Bansal vs. Sahil Bansal (July 2025): The Supreme Court later endorsed this model proposed by the Allahabad High Court.

Problems with the “Cooling-off Period”

• Delayed Justice: For genuine victims facing severe torture or abetment to suicide, a 2-month cooling-off period translates into a “frustrating period” where immediate help is denied.
• Lack of Legal Expertise and Standing: The Family Welfare Committees often lack legal experience, and their formation and legal standing are unclear.
• Interference in Police Work: Investigation is the constitutional duty of the police, not of such non-statutory committees, constituting an undue interference.

History Repeating Itself- “Judicial Experimentalism”

• Rajesh Sharma case (2017): The Supreme Court had previously issued similar directions regarding the formation of Family Welfare Committees.
  • This earlier judgment faced widespread opposition from women’s rights groups, who deemed it “regressive” and as closing doors to justice for victims.
• Social Action Forum for Manav Adhikar case (2018): Within a year, a three-judge Supreme Court bench overturned its own Rajesh Sharma judgment, stating that the idea of Family Welfare Committees was flawed.

Conclusion

• The current endorsement of a similar model by the Supreme Court, despite having rejected it previously, raises concerns about “judicial experimentalism” and its potential cost to genuine victims.

DOWNLOAD PDF