If you are stuck in such a situation, here is what to do.

In a landmark decision, the Supreme Court of India has recently endorsed guidelines issued by the Navapura High Court aimed at preventing the misuse of laws concerning cruelty in matrimonial disputes, specifically Section 85 of the Bharatiya Nyaya Sanhita (BNS). The apex court affirmed that these guidelines strike a crucial balance between protecting genuine victims and preventing innocent individuals from being ensnared by false allegations.

This judgment highlights the need for a more nuanced approach to handling matrimonial disputes in India, particularly those involving allegations of cruelty and harassment. The court has effectively introduced a “cooling-off” period, mandating that no arrests can be made for two months after an FIR is registered under Section 85 BNS. During this period, the case is to be referred to a Family Welfare Committee (FWC) for mediation and preliminary assessment.

This directive emerged from a notable case, Priya Sharma vs. Rohan Verma, which underscored how legal provisions can sometimes be used as tools in personal conflicts. In this case, a high-ranking government official, Ms. Sharma, had filed multiple criminal complaints against her husband and his family. This led to the husband and his elderly father spending over 100 days in custody before the allegations were found to be baseless. The Supreme Court, exercising its inherent powers to ensure complete justice, not only quashed the proceedings and dissolved the marriage but also ordered the complainant and her family to issue a public apology as a deterrent against the misuse of law.

Advice in such cases

Matrimonial disputes are emotionally and legally complex. The introduction of the mandatory cooling-off period and mediation by Family Welfare Committees (FWCs) has changed the immediate course of action for both parties.

• Stay Calm and Document Everything: Whether you are the complainant or the accused, emotional reactions can worsen the situation. Keep a detailed record of all communications, incidents, and interactions.
• Understand the Process: The first two months are for mediation, not arrest. The FWC will attempt to facilitate a dialogue. Cooperate with the committee, as their report is crucial.
• Preserve Evidence: Gather all relevant evidence, such as text messages, emails, photos, or witness information. This will be vital if the case proceeds beyond the mediation stage.
• Avoid Public Confrontation: Refrain from discussing the case on social media or engaging in public arguments, as this can be used against you.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

The primary legal provisions involved in such cases now fall under the new Indian laws:

• Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS): This section defines the offence of cruelty by a husband or his relatives towards a woman. It is the new provision corresponding to the old Section 498A IPC.
• Section 86 of the Bharatiya Nyaya Sanhita, 2023 (BNS): This specifies the punishment for the offence of cruelty, which can be imprisonment for up to three years and a fine.
• Provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): The BNSS governs the procedure for investigation, arrest, and trial. The new guidelines on pre-arrest mediation and the role of the FWC are implemented under the procedural framework of the BNSS.

If you are the complainant

If you have filed a complaint of cruelty, it is important to navigate the process effectively, especially with the new guidelines in place.

• Be Clear and Specific: In your complaint (FIR), provide clear, specific details of the incidents of cruelty. Vague or exaggerated claims can weaken your case.
• Cooperate with the FWC: The Family Welfare Committee is your first stop. Present your case calmly and provide them with all the facts. The goal of the FWC is to assess the situation and attempt reconciliation or settlement.
• Gather Supporting Evidence: While the police cannot make arrests, the investigation is not halted. Provide the Investigating Officer with any evidence you have, such as medical reports (in case of physical harm), photographs, emails, or text messages that substantiate your claims.
• Have Witnesses Ready: If there are individuals who have witnessed the cruelty, their statements will be crucial. Inform the police about them so their statements can be recorded.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

As a victim of marital cruelty, your safety and legal rights are paramount. The new process provides a structured path for redressal.

• Prioritize Your Safety: If you are in a dangerous situation, remove yourself from it first. Seek shelter with trusted family, friends, or at a support center.
• Document Injuries and Incidents: If you have suffered physical abuse, get a medico-legal certificate (MLC) from a government hospital immediately. Keep a diary of all incidents of mental, emotional, and physical cruelty with dates and times.
• Engage with the FWC Seriously: The two-month mediation period is an opportunity to have your grievances heard in a non-confrontational setting. A detailed and truthful account to the committee can lead to a favorable report.
• Do Not Be Pressured into a False Compromise: While mediation is encouraged, you should not be forced into a reconciliation that is against your will or compromises your safety. Your lawyer can help you navigate this.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Following the Supreme Court’s endorsement of the new guidelines, the role of the police in the initial stages of a Section 85 BNS case has been redefined:

• No Immediate Arrest: The police are barred from making any arrests for two months after the FIR is lodged. This applies to the husband and any relatives named in the complaint.
• Referral to FWC: The first step for the police is to refer the complaint to the designated Family Welfare Committee in the district.
• Limited Investigation: During the two-month cooling-off period, the police can conduct a preliminary investigation. This includes collecting documents, recording statements of independent witnesses, and gathering peripheral evidence that does not involve summoning the accused.
• Action Based on FWC Report: After two months, the FWC submits its report. The police will then decide on the future course of action, including whether to proceed with arrests and a full-fledged investigation, based on the committee’s findings and the evidence on record.

FAQs people normally have

Q: Does the two-month cooling-off period mean no action will be taken on my complaint?

A: No. The cooling-off period is not for inaction but for mediation and preliminary assessment by the Family Welfare Committee. The police can still conduct a peripheral investigation during this time. The purpose is to explore amicable solutions before resorting to coercive measures like arrest.

Q: What if the accused tries to harm me or tamper with evidence during the cooling-off period?

A: The bar on arrest is for the allegations under Section 85 BNS. If a fresh offence is committed, such as causing grievous hurt or making threats, the police can take immediate action for that specific offence under the relevant sections of the law.

Q: Who are the members of the Family Welfare Committee (FWC)?

A: FWCs typically consist of at least three members, which may include retired judicial officers, social workers, mediators, or other respected members of society, to ensure an impartial assessment.

What evidence is required?

Evidence is the cornerstone of any legal case. For matters under Section 85 BNS, both direct and circumstantial evidence are important.

• Digital Evidence: WhatsApp chats, SMS messages, emails, call recordings, and social media posts that show harassment, threats, or demands.
• Documentary Evidence: Medical reports (MLCs) in case of physical violence, bank statements showing financial control or demands, letters, or any written communication.
• Witness Testimony: Statements from neighbours, friends, family members, or colleagues who have witnessed acts of cruelty or can testify to the victim’s state of distress.
• Photographs and Videos: Any visual proof of injury, damage to property, or abusive incidents.

How long will the investigation take?

The timeline for an investigation can vary, but the new guidelines provide a structured initial phase:

• First Two Months: This period is dedicated to mediation and assessment by the Family Welfare Committee. No arrests are made during this time.
• Post-FWC Report: After the FWC submits its report, the police will decide the next steps. If the report suggests a prima facie case, a formal investigation under the BNSS will commence, which may involve interrogation and, if necessary, arrest.
• Overall Timeline: A full investigation and the subsequent trial can take several months to years, depending on the complexity of the case, the evidence involved, and the caseload of the courts. However, the initial two-month period is now a fixed and mandatory step.

Advocate Sudhir Rao, Supreme Court of India