Section 498A IPC / Section 85 BNS: 40 Important Cross-Examination Questions in Matrimonial Cruelty Cases By Advocate Avichal Pandey, Allahabad High Court

Section 498A IPC / Section 85 BNS: 40 Important Cross-Examination Questions in Matrimonial Cruelty Cases

By Advocate Avichal Pandey, Allahabad High Court

Matrimonial criminal cases involving allegations of cruelty and dowry harassment require careful appreciation of the pleadings, FIR, statements recorded during investigation, documentary evidence and, most importantly, the testimony of the prosecution witnesses during cross-examination.

Section 498A of the Indian Penal Code was introduced to protect married women from cruelty by their husbands and the relatives of their husbands. For offences committed after the commencement of the new criminal laws, the corresponding provision is Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS), read with Section 86, which defines cruelty. Section 85 provides punishment of imprisonment up to three years and fine. 

The change in statutory numbering does not make cross-examination any less important. The defence must still test whether the allegations actually satisfy the ingredients of the offence and whether the prosecution evidence is consistent, specific and reliable.

Understanding the Ingredients of Cruelty

Section 86 BNS broadly recognises two categories of cruelty:-

1. Wilful conduct likely to drive the woman to suicide or cause grave injury or danger to her life, limb or physical or mental health; and

2. Harassment connected with an unlawful demand for property or valuable security, including harassment because such demand was not fulfilled. 

An important point is that a dowry demand is not necessarily required in every prosecution under the cruelty provision. The Supreme Court has clarified that the two forms of cruelty operate independently; physical or mental cruelty falling within the statutory definition can constitute the offence even without a separate dowry demand. 

Therefore, a defence should not mechanically ask questions only about dowry. The cross-examination must address the specific nature, date, place, conduct, persons involved and supporting evidence concerning the alleged cruelty.

Why Cross-Examination Matters in 498A/BNS Section 85 Cases

A matrimonial complaint may contain numerous allegations. However, an allegation in an FIR or complaint is not by itself proof of the offence.

The purpose of cross-examination is to determine:-

1.What exactly happened?

2.When did it happen?

3.Where did it happen?

4.Who was present?

5.Who allegedly demanded dowry?

6.What exactly was demanded?

7.Was the demand communicated to the complainant's family?

8.Was any contemporaneous complaint made?

9.Is there documentary or medical corroboration?

10.Are there material improvements in the witness's court testimony?

11.Are the allegations against every accused specific or merely omnibus?

The Supreme Court has repeatedly cautioned against prosecuting relatives merely on the basis of general and omnibus allegations. In Kahkashan Kausar @ Sonam v. State of Bihar, the Court emphasised the importance of specific allegations against relatives of the husband. 

More recently, the Supreme Court has again stressed that vague allegations without specific dates, incidents or overt acts can be insufficient, particularly where relatives living separately have been implicated. 

40 Important Cross-Examination Questions

The following questions may be considered as a defence checklist, subject to the facts and evidence of the particular case.

A. Alleged Dowry Demand

1. You have alleged that the accused demanded dowry; what exactly was allegedly demanded?

2. Can you specify the date on which the alleged demand was made?

3. Where exactly was the alleged demand made?

4. Who was present when the alleged demand was made?

5. Who specifically made the alleged demand?

6. Did you immediately inform any member of your parental family about that particular incident?

7. Did you make any contemporaneous complaint regarding the alleged demand?

8. Is the particular incident mentioned in your first complaint/FIR?

9. Did you mention the same details in your statement to the investigating officer?

10. Is there any independent witness who personally heard the alleged demand?

B. Testing the Specific Incident

11. You have stated that the accused subjected you to cruelty; can you identify the specific incident on which you rely?

12. What was the exact date and time of that incident?

13. Where did the incident take place?

14. Which accused was personally involved in that incident?

15. Who else was present at that time?

16. Did you sustain any injury in the alleged incident?

17. Did you obtain medical treatment after the alleged incident?

18. Have you produced any medical document supporting the allegation?

19. Did you inform the police or any other authority immediately after the incident?

20. Is there any independent documentary evidence contemporaneous with the alleged incident?

C. Previous Statements and Improvements

21. Is the specific incident you have described before the Court mentioned in your earlier statement?

22. Is it correct that this particular allegation does not appear in your earlier version?

23. Did you mention the same fact in your complaint/FIR?

24. Did you disclose this allegation to your family members at the relevant time?

25. Did you mention the alleged demand or incident in any earlier written complaint, legal notice or matrimonial proceeding?

26. Is it correct that the details being stated by you today were not mentioned in your earlier version?

27. Can you explain why this particular allegation was not mentioned earlier?

D. Allegations Against Relatives

28. What specific overt act is attributed to each individual relative?

29. Were all the accused relatives residing with you at the relevant time?

30. If any accused was living separately, when did you allegedly meet that person in connection with the alleged incident?

31. Did that particular relative personally demand dowry from you?

32. Can you identify the exact words or conduct attributed to that particular accused?

33. Is there any independent witness against that particular relative?

34. Is the allegation against that relative based only on his or her relationship with your husband?

The Supreme Court has repeatedly warned that merely being a relative of the husband does not automatically establish criminal liability; specific involvement must be examined from the material on record. 

E. Documentary and Independent Corroboration

35. Have you produced any document showing that the alleged incident occurred on the date stated by you?

36. Do you have any call record, message, email or other contemporaneous communication supporting the allegation?

37. Have you produced any independent witness who personally witnessed the alleged act of cruelty?

38. Is there any document independently corroborating the place, date or circumstances of the alleged incident?

39. Did you make any contemporaneous complaint to a police authority, family member, women's cell, medical authority or other competent authority regarding the specific incident?

40. I put it to you that the allegations made against the accused are generalised and that the specific incidents now stated by you were not mentioned in your earlier versions.

The Most Important Principle: Do Not Treat 40 Questions as a Formula

The above questions should not be mechanically reproduced in every trial.

A good cross-examination begins with the prosecution's own documents.

The defence lawyer should first prepare a comparative chart of:

FIR → Complaint → Section 161 statement → Section 164 statement, where applicable → Charge-sheet → Examination-in-chief → Cross-examination

Any material difference should then be tested carefully.

For example, if the FIR merely states that the accused "used to demand dowry", but the witness subsequently gives a detailed account of a particular demand involving a specific amount, date, place and accused, the defence may investigate whether this is a material improvement rather than an insignificant omission.

Recent Supreme Court decisions demonstrate the importance of examining whether allegations contain concrete particulars rather than merely general assertions. In Rajesh Chaddha v. State of Uttar Pradesh, the Supreme Court dealt with allegations that lacked sufficient specificity and supporting material and ultimately acquitted the accused. 

But Specificity Alone Does Not Automatically Mean Acquittal

This distinction is extremely important.

The defence should not argue that every 498A/BNS Section 85 case fails merely because the complainant cannot remember an exact date.

Courts evaluate the entire evidence.

A genuine matrimonial cruelty case may involve repeated conduct over a period of time, and the absence of an exact date for every individual incident does not necessarily destroy the prosecution case.

Similarly, the Supreme Court has clarified that cruelty under Section 498A can exist independently of a dowry demand where the alleged conduct satisfies the statutory definition of cruelty. 

Therefore, the defence should focus on material contradictions, omissions, improbabilities, absence of corroboration where corroboration is reasonably expected, and failure to establish the statutory ingredients, rather than relying on technicalities alone.

Cross-Examination of the Investigating Officer

In an appropriate case, the Investigating Officer may become particularly important.

Questions may include:-

A.Whether the witness mentioned the alleged incident in the first statement.

B.Whether the alleged date and place were disclosed during investigation.

C.Whether the investigating officer verified the alleged place of occurrence.

D.Whether medical evidence was collected.

E.Whether independent witnesses were examined.

F.Whether electronic evidence was collected or verified.

G.Whether statements of relevant family members were recorded.

H.Whether any accused was living separately.

E.Whether the investigation found any specific role of each accused.

F.Whether any material contradiction or omission was recorded during investigation.

The objective should be to demonstrate a specific evidentiary weakness, not merely to create an argument of contradiction.

Matrimonial Dispute and Criminal Prosecution: A Balanced Approach

Matrimonial disputes can involve both genuine criminal conduct and allegations arising from a highly contested relationship. Courts therefore have to maintain a balance.

On one hand, genuine cruelty and dowry harassment cannot be ignored merely because the case arises out of a matrimonial dispute.

On the other hand, criminal prosecution should not continue against persons solely because they happen to be relatives of the husband where the material contains no specific and legally sustainable allegations. The Supreme Court has reiterated this caution in recent cases. 

The defence must therefore examine the evidence accused-by-accused rather than adopting a single blanket defence.

Section 498A IPC and Section 85 BNS: Important Current-Law Note

Since the new criminal laws came into force on 1 July 2024, Section 85 BNS read with Section 86 BNS is the principal provision concerning cruelty by a husband or his relative in cases governed by the new law. 

However, cases relating to conduct governed by the previous legal regime may continue to involve Section 498A IPC, depending upon the dates and applicable transitional provisions.

Accordingly, while preparing a defence, an advocate should first determine when the alleged offence occurred and which substantive and procedural provisions legally apply.

Practical Defence Strategy

A well-prepared defence in a matrimonial cruelty case should generally proceed through the following stages:

1. Identify the statutory ingredients

Determine precisely which part of Section 498A IPC or Section 85/86 BNS is alleged.

2. Prepare an allegation chart

Create separate columns for:

Accused | Allegation | Date | Place | Specific Act | Witness | Document | Earlier Statement

3. Compare all versions

Compare the FIR, complaint, police statements and deposition.

4. Identify material improvements

Do not focus on trivial discrepancies. Concentrate on contradictions affecting the core prosecution story.

5. Examine individual roles

Particularly where multiple relatives have been accused.

6. Test corroboration

Look for medical records, messages, call records, complaints, bank records, photographs, independent witnesses and other contemporaneous evidence where relevant.

7. Cross-examine on the prosecution's own documents

A document produced by the prosecution can sometimes be more effective than a defence suggestion.

8. Put the defence case clearly

Important defence propositions should ordinarily be put to the relevant witness at the appropriate stage, keeping in mind the Evidence Act/Bharatiya Sakshya Adhiniyam and the facts of the case.

Conclusion

Cross-examination in a Section 498A IPC or Section 85 BNS case is not simply an exercise of asking the complainant forty questions. It is a structured process of testing whether the prosecution has established the specific statutory ingredients of cruelty against each accused through reliable evidence.

The most effective questions are those which arise naturally from the prosecution's own documents and expose a material inconsistency, omission, lack of personal knowledge, absence of corroboration or absence of a specific role.

At the same time, the law recognises that genuine physical and mental cruelty can constitute an offence even without a dowry demand. Therefore, a responsible defence must distinguish between legitimate testing of prosecution evidence and an attempt to discredit a genuine victim merely because the case is matrimonial. 

A strong cross-examination is not the longest cross-examination. It is the one that addresses the ingredients of the offence, tests the credibility of the witness and brings the material facts before the Court in a clear and legally relevant manner.

By Advocate Avichal Pandey

Allahabad High Court

Disclaimer: This article is intended for general legal information and educational purposes. The questions mentioned above are illustrative and must be adapted to the FIR, charge-sheet, witness statements, documents and facts of the individual case. It should not be treated as a substitute for case-specific legal advice.