Defending a False 498A: Quashing, Anticipatory Bail and Evidence

A false 498A defence in India is not one application, it is three running at the same time: protection from arrest, a petition to quash the first information report, and a documentary record built in the first few weeks while the paperwork still exists. Section 498A of the Indian Penal Code is now Section 85 of the Bharatiya Nyaya Sanhita, 2023, with the definition of cruelty in Section 86, and the procedural tools have moved to the Bharatiya Nagarik Suraksha Sanhita, 2023. The law itself is unchanged in substance. What has changed is every section number a defence lawyer will cite.

None of this suggests that complaints of matrimonial cruelty are usually untrue. The provision exists because cruelty and dowry harassment are real, and courts have said so repeatedly. This article is narrower: what the law permits an accused family to do when the allegations against them are vague, borrowed or demonstrably impossible.

What Section 498A became under the new criminal codes

The Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024. Section 85 of the Nyaya Sanhita punishes a husband or a relative of the husband who subjects a woman to cruelty with imprisonment which may extend to three years and fine. Section 86 supplies the definition, in the same two limbs as the old Explanation: wilful conduct likely to drive the woman to suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, and harassment with a view to coercing her or her relatives to meet an unlawful demand for property or valuable security.

Under the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, the offence is cognizable where information is given to the officer in charge of a police station by the aggrieved woman or by a relative specified in the Schedule, it is non-bailable, and it is triable by a Magistrate of the first class. Those three characteristics explain the shape of the defence. Cognizable means the police can register and investigate without a Magistrate's order. Non-bailable means bail is discretionary, not a matter of right. Three years is the outer punishment, which brings the arrest safeguards squarely into play.

Three characteristics of the offence under the new codes set the shape of the defence.

Building a false 498A defence in India: three tracks at once

Families who wait to see what the police do usually lose the two things that matter most: the window before arrest, and the electronic material that a service provider will delete on its own retention cycle. The three tracks below should start together, not in sequence.

Deadline warning. WhatsApp backups, call detail records and CCTV footage have short retention cycles. Preservation requests to the service provider or the apartment association, and a certified download of your own devices, should be done in the first fortnight, not after the charge sheet is filed a year later.

Track one: keeping the family out of custody

Because Section 85 carries a maximum of three years, Section 35(1)(b) of the Bharatiya Nagarik Suraksha Sanhita permits arrest only where the police officer records specific reasons, such as preventing further offences, proper investigation, or preventing tampering with evidence. Where arrest is not required, Section 35(3) obliges the officer to issue a notice to appear, and Section 35(5) says that a person who complies and continues to comply shall not be arrested unless reasons are recorded. This is the statutory form of what the Supreme Court laid down in Arnesh Kumar v. State of Bihar, decided on 2 July 2014, where the Court dealt directly with mechanical arrests in 498A cases and directed police and Magistrates to apply their minds before authorising detention.

Two practical points. First, comply with every notice, in writing, and keep the acknowledgement. Non-appearance converts a strong position into an arrest under Section 35(6). Second, Section 35(7) is new and useful: no arrest may be made without the prior permission of an officer not below the rank of Deputy Superintendent of Police where the offence is punishable with imprisonment of less than three years and the person is infirm or above sixty years of age. Whether Section 85, punishable with up to three years, falls within that threshold is arguable, but the provision is worth raising for elderly parents named in the complaint.

Anticipatory bail is now sought under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, before the Court of Session or the High Court. Our general note on anticipatory bail in India covers the mechanics. In matrimonial matters, courts commonly attach conditions about cooperating with the investigation, not contacting the complainant, and not leaving the country without permission, and those conditions are ordinarily easier to accept than to litigate.

Track two: quashing under Section 528 BNSS

The High Court's inherent power, formerly Section 482 of the Code of Criminal Procedure and now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, allows an FIR or a charge sheet to be quashed to prevent abuse of the process of any court. The framework remains the seven categories set out in State of Haryana v. Ch. Bhajan Lal, decided on 21 November 1990, which include cases where the allegations, taken at face value and accepted in their entirety, do not make out any offence, where they are so absurd and inherently improbable that no prudent person could find sufficient ground to proceed, and where the proceeding is maliciously instituted with an ulterior motive.

Two lines of authority matter especially in matrimonial cases. In Kahkashan Kausar v. State of Bihar, judgment dated 8 February 2022, the Supreme Court quashed proceedings against in-laws, holding that general and omnibus allegations cannot result in relatives of the husband being forced to undergo trial, and observing that even an eventual acquittal leaves severe scars. In Dara Lakshmi Narayana v. State of Telangana, decided on 10 December 2024, the Court said that a mere reference to the names of family members in a criminal case arising out of a matrimonial dispute, without specific allegations of active involvement, should be nipped in the bud, and cautioned against vague and generalised allegations being used as a tool for personal vendetta.

Key takeaway. A quashing petition succeeds on the four corners of the complaint, not on your version of the marriage. The strongest petitions read the FIR closely and show that as against a particular accused there is no date, no place, no act and no demand, only a name in a list. Filing affidavits contradicting the complainant's account invites the answer that these are matters for trial.

For the procedure and what a reasoned order looks like, see our explainers on quashing of an FIR under Section 482 CrPC, now Section 528 BNSS and on Section 498A explained.

Track three: the evidence you build, not the evidence you argue

Most of the material that decides a 498A case is documentary and it is generated before anyone consults a lawyer. Electronic records are now governed by Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, and Section 63(4) requires a certificate to be submitted along with the electronic record at each instance where it is offered for admission. A screenshot on a phone is not evidence. A properly extracted record with the certificate is.

The categories that repeatedly matter are chat and email threads in full rather than in fragments, call detail records, passport stamps or employer records showing that a named relative was not in the city on the dates alleged, address proofs showing that in-laws lived separately, bank records answering a dowry demand, and any medical record relied on by either side. Where the complaint names siblings living in other cities, residence proof is often the single most effective document in a quashing petition.

Settlement, and when quashing follows it

A large proportion of these matters end in a comprehensive settlement covering divorce, maintenance and the return of articles, followed by a joint petition to quash. Although the offence is not compoundable in the ordinary way, the High Court can quash proceedings arising from a matrimonial dispute where the parties have genuinely settled, following Gian Singh v. State of Punjab, (2012) 10 SCC 303. The settlement must be recorded in a way the High Court can act on, the payment schedule tied to identifiable milestones, and the petition listed only when the agreed steps are complete.

Remedies where a complaint is shown to be false

Section 217 of the Bharatiya Nyaya Sanhita covers giving false information to a public servant intending to cause the servant to use his lawful power to the injury of another. Section 248 covers instituting a criminal proceeding, or falsely charging a person, knowing there is no just or lawful ground, punishable in the ordinary case with imprisonment up to five years, or fine up to two lakh rupees, or both. Where false statements were made on oath, Section 379 of the Bharatiya Nagarik Suraksha Sanhita sets out the procedure. These are real provisions, but they are slow, they usually depend on the court's own initiative, and pursuing them while the main matter is alive rarely helps.

Steps in the first sixty days

1. Obtain a copy of the FIR and read it against a calendar, marking every date, place and specific act alleged, and noting which accused each allegation actually touches.
2. Preserve electronic material at once: export full chat threads, request call detail records, and send preservation requests for CCTV footage before it is overwritten.
3. Collect residence, travel and employment proof for every relative named, particularly those living elsewhere.
4. Respond to any notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita in writing and appear on the date given, keeping the acknowledgement.
5. File for anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita where custodial risk is real, with the elderly and the distant relatives dealt with separately.
6. Map the parallel proceedings: maintenance under Section 144, a domestic violence application, a divorce or restitution petition, and any child custody matter, so that inconsistent positions are not taken across them.
7. Assess the quashing petition on the strength of the FIR itself, accused by accused, rather than filing one omnibus petition for the whole family.
8. Keep a single indexed bundle of everything, since the same documents will be used in the criminal case, the maintenance case and the divorce.

Indicative timelines and costs

These are indicative ranges, not commitments, and they vary with the court, the number of accused and the conduct of the parties. Anticipatory bail applications are often heard within a few weeks of filing. A quashing petition under Section 528 commonly takes several months to a couple of years to reach final disposal, with interim protection sometimes granted earlier. A contested trial before a Magistrate can run for two to five years or more. Professional fees are conventionally structured per application or per hearing, and court fees are modest compared with the incidental costs of travel, copies and translations. Nothing here is an estimate for a particular matter.

The indicative ranges above sit roughly as follows, and none of them is a commitment for any particular matter.

A note from practice

The most common avoidable damage in these matters is self inflicted and happens in the first week. Angry messages sent after the FIR, an attempt to reason with the complainant's family by phone, a hurried counter complaint drafted in an evening, all become exhibits. The second avoidable problem is inconsistency, because the same facts get narrated differently in the bail application, the maintenance reply and the divorce petition, and the discrepancies are read out later. The defence that holds together is boring: complete documents, consistent pleadings, punctual appearances, silence outside court. Our broader work here is described on our family and divorce law page.

Related guides and where to get help

If this is a live problem rather than background reading, our family and divorce law practice handles these matters from Bengaluru, including for clients who cannot attend court in person. These guides go deeper on the neighbouring questions:

• False POCSO Case in Divorce: Rights & Remedies
• Transfer Petition in Matrimonial Cases: How to Move Your Divorce or 498A Case (2026)
• 498A IPC and BNS Explained: Cruelty by a Husband or His Family

Frequently Asked Questions

This article is general information reflecting the law as understood on the date of publication. It is not legal advice, and outcomes depend entirely on the facts of each case.