What’s in the Obiter?

**Bhavyl Bansal 

The quintessential dialogue by Shakespeare: what’s in a name? might be sweeping inside our courtrooms, and it is more relevant than we may realise. An obiter is something ‘which is said in passing’, i.e. any remark in judgement that is not cardinal to the outcome of the case. However, obiter as pronounced by our judges, shouldn’t be dismissed as ‘irrelevant’ to our jurisprudence. Although, not legally binding, obiter dicta carry profound persuasive significance and can highlight the underlying reasoning judges may resort to, whilst adjudicating upon a matter. 

Section 498-A of the erstwhile Indian Penal Code (“IPC”), now Section 85 of the Bharatiya Nyaya Sanhita (“BNS”), continues to be scrutinised by the judiciary for its misuse. The remarks about its misuse are incessantly echoed in judgements, news reports, and oral remarks in the courtrooms. On 22 July 2025, in a similar paradigm, the Division Bench of the Hon’ble Supreme Court of India, comprising Hon’ble Chief Justice of India B.R. Gavai and Hon’ble Justice Augustine George Masih, in the case of Shivangi Bansal v. Sahib, lambasted the growing misuse of Section 498-A, and upheld the order given by the Hon’ble Allahabad High Court on 13 June 2022. This blog is not a commentary on the reality or societal and judicial perception of Section 498-A, or the merits of the Shivangi Bansal case. The scope of this blog is limited to scrutinizing the peculiar language and obiter deployed by Hon’ble Justice Rahul Chaturvedi of the Hon’ble Allahabad High Court. Patriarchal notions are deeply embedded in our collective conscious, and the same resonates in our judicial pronouncements, as well. 

In the Shivangi Bansal case, the police couldn’t corroborate the Appellant’s averments of mistreatment and harassment, against her husband and in-laws. By that corollary, the Bench could have simply rejected her claims, based on the merits of the case. Instead, the Bench decided to embark on a route that disgraced its sanctity. The Bench called the Appellant a ‘furious lady, and the texture and tenor of her FIR speaks volumes about her marital condition; the amount of venom in her mind shows that in order to take revenge from her husband, she has gone to any extent, crossing all the limits of decency’.

Filing PG-13 FIRs 

The said order gets increasingly concerning; the Bench expresses its exasperation over the apparent grotesque description that the Appellant resorted to in her FIR. She had mentioned that she was subjected to forceful oral and anal sex, by the Respondent. However, it was the ‘explicit mention’ of these offences that riled Hon’ble Justice Rahul Chaturvedi. According to the Bench, ‘the FIR is the place where the informant gives the story mobilizing the State machinery engaging in the commission of a cognizable offence. It is not soft porn literature where the graphical description should be made’.

The Bench further remarked that ‘the language of the FIR should be decent and no amount of atrocities faced by the informant, would justify her to use such type of expressions’. Such comments traverse beyond the merits of the case. A litigant whilst approaching the court has two probabilities in front of them: either winning the case or losing it. However, such adverse remarks on record by the Bench, add another layer of disparagement and humiliation, that the litigant might have already suffered, in private.  It is already a legal anomaly that a formidable legal system like ours has not criminalised marital rape. However, such remarks construe an acquiescence towards such bodily degradation. It is startling that for the said Bench, the mention of an offence is more of an indignation than the occurrence of the said offence. 

The Shroud of Family Values 

On the allegations made by the Appellant against her father-in- law and brother-in-law, the court stated that ‘in our traditional Indian family, where they are residing in a joint family with unmarried son, it is highly improbable and difficult to digest the allegations of demanding sexual favours from her daughter-in-law by father-in-law or brother-in-law’. This judgement is not just insensitive and tone-deaf; it exhibits legal ignorance. The infamous Imrana case of the early 2000’s shocked the national conscience in India; the Islamic Darul-uloom ordered the husband of the victim to divorce her, as her father-in-law had raped her on multiple occasions. Unfortunately, such incidents frequently occur and are concealed under the veil of family values. 

The court expounded on the rampant misuse of Section 498-A and exaggeration of matrimonial distress. Subsequently, the Bench moved on to comment on the changing social fabric of the country with the increasing instances of ‘live-in relationships’ that are replacing the traditional system of marriage. Here, the Bench entangles two different subjects and unnecessarily drags and admonishes live-in relationships, while the subject matter was of matrimonial discord. 

On the contrary, one could argue that the increase in live-in relationships, would diminish the growing misuse of Section 498-A, something the Bench is vehemently outraged by. As the court progresses, its remarks transition from an obiter to a protest of a disgruntled traditionalist; transcending the required legal and social analysis, of the concerned matter.

New Reform, Old Me 

Moving ahead in the order, the Bench proposes a 2-month cooling off period, whenever a complaint alleging an offence under Section 498-A, is lodged. Additionally, the court directed the institution of Family Welfare Committees (“FWC”), in every district in Uttar Pradesh, for amicable resolution of cases, involving the charge of Section 498-A, as long as the said charge is not accompanied by an allegation of attempt to murder.

A peculiar feature lies in the composition of the said FWCs, as stipulated by the court: a young mediator or a young advocate, or ‘senior most student studying law with a good academic record and a public-spirited young man’, and ‘educated wives of senior administrative officers of the district’. Unequivocally, the requirement of a student being on a welfare committee dealing with the labyrinth of complex inter-personal relationships, that is beyond their years is one of the few questionable recommendations. Further, the Bench again engages in problematic and sexist language by the requirement of ‘educated wives of senior administrative officers’. This stipulation is a concomitant of the assumptions related to the presumed ‘nurturing and domestic nature of women’ and that high-ranking officials, by default, would be men.

The recurring problem in the order was an unnecessary commentary on the current ordeal of marriages, and on relationships falling outside the institution of marriage. It is necessary that our courts don’t get carried away and forget the gravitas their words hold. Recently, the Supreme Court admonished the Calcutta High Court for remarking that ‘adolescent girls must control their sexual urges’. The Apex Court reminded that the judges are not expected to express their personal views. However, the veneer of sensitivity doesn’t suffice; it is crucial that we are able to comprehend how our judges perceive societal issues; their judicial pronouncements not only mirror the highest standards we set for our society, but also determine the future trajectory of law, in the country. 

Why This Sets a Dangerous Precedent

Judge Cardozo warned that ‘In the long run there is no guarantee of justice except the personality of the judge’. The above-mentioned critique doesn’t exist in isolation with respect to a particular case or judge. Such repugnant remarks aren’t limited to judges’ biases, they further embolden our courts, especially the lower judiciary, to join the bandwagon. Unfortunately, the lower judiciary suffers from mistrust and inefficiency; combining this with philistine influences from higher judiciary, is likely to worsen the prevailing conditions. Further, scholars in other jurisdictions have also elaborated on the direct impact of statements of the higher judiciary on the application of law by the lower judiciary. 

Such orders mirror the dangers American Realists had warned about: Jerome Frank theorised the ‘judicial hunch’, according to which, judges have pre-decided the outcome of a case, and based on that conclusion, they resort to an existing principle or precedent to justify it. In the mentioned order- redundant remarks against live-in relationships, and a portrayal of a ‘furious lady causing a frenzy in the family’ aren’t only patriarchal, but reflect a conundrum, infiltrating deeper into our justice system. 

Indian feminist scholars have been flagging this issue for decades now; for instance, according to Nivedita Menon, most legal systems are discriminatory and act as legal agents in interpreting the law in a patriarchal manner. The image of an ‘ideal woman’ has become ingrained in our cultural ethos, and judges are not immune to the malady of patriarchy. Remarks expressing repugnance towards a daughter-in-law levying allegations against her in-laws and using apparent ‘explicit and graphic language’ in her FIR, inter alia, further solidify this critique of feminist scholars. In 2023, the Supreme Court formulated the Handbook on Combatting Gender Stereotypes, which aimed at eradicating the disrespectful words used against women in judgements. Indeed, a commendable initiative by the Apex Court; however, using refined language doesn’t conceal the inner sexism of the judges, as evident by their obiter dicta.  

Often in interpreting a statute, custom or equity, judges create a law rather than discovering it; their expression of law becomes the highest form of law. What is more concerning is that whilst upholding the order by the Allahabad High Court, the Apex Court has expressed no concern over the misogynist remarks. In 2022, a Division Bench comprising former Hon’ble CJI D.Y. Chandrachud and Hon’ble Justice J.B. Pardiwala, held that courts must treat victims of sexual harassment and assault, in a sensitive manner, and acknowledged that victims of such offences, mostly women, face greater societal stigma (2023 9 SCC 705). Yet, on the other hand, the  Supreme Court’s silence in the given case, can be construed as an acquiescence or approval of the remarks by the Allahabad High Court. 

According to National Judicial Data Grid, in 2025, of all the criminal cases filed in India, only 5.54% of them, were filed by women. While there could be an amalgamation of reasons for that, women victims have to face greater trepidation whilst approaching the court. Such openly sexist remarks by the courts shall further unintentionally embolden such hesitation. Hence, crystallising the manifestation of the predictive theory by Holmes. The ramifications of obiter must not be taken lightly; at best, such orders can be a mere embarrassment for our courts, and at its worst, impede litigants from approaching the court and amplify the already built-up abhorrence towards Section 498-A of IPC. 

**Bhavyl Bansal is a penultimate-year law student at Jindal Global Law School.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.