Section 85 BNS and the Successor to Section 498A IPC — Cruelty by Husband and Dowry Harassment Explained

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Introduction

With the coming into force of the Bharatiya Nyaya Sanhita, 2023 (BNS) on 1 July 2024, Section 498A IPC has been re-enacted as Section 85 BNS, with the definition of cruelty in Section 86 BNS. This article explains the substantive offence, the procedure under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the principal Supreme Court guidelines (Arnesh Kumar, Rajesh Sharma, Social Action Forum for Manav Adhikar), and the civil and matrimonial remedies that run in parallel.

The Statutory Provision — Section 85 BNS

Section 85 of the Bharatiya Nyaya Sanhita, 2023 reproduces Section 498A of the IPC in substance:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

The offence is cognizable, non-bailable, and non-compoundable (in most States, including Uttar Pradesh; some States have notified it as compoundable with the permission of the court).

”Cruelty” Defined — Section 86 BNS

Section 86 of the BNS — corresponding to the Explanation to Section 498A IPC — defines cruelty as:

(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security, or is on account of failure by her or any person related to her to meet such demand.

The two limbs are independent. Limb (a) covers grave conduct that drives the woman to suicide or seriously endangers her; limb (b) covers harassment connected with unlawful demands — most commonly, demands for dowry. A conviction can rest on either limb.

Ingredients of the Offence

For a conviction under Section 85 BNS, the prosecution must establish:

The accused is the husband or a relative of the husband of the woman complainant.
The accused subjected the woman to cruelty within the meaning of Section 86.
The conduct was wilful (intentional, not merely negligent).
Where the second limb is invoked, the harassment was connected with an unlawful demand — typically a dowry demand.

The definition of “relative” has been the subject of judicial pronouncement. In U. Suvetha v. State, (2009) 6 SCC 757 and Vijeta Gajra v. State of NCT of Delhi, (2010) 11 SCC 618, the Supreme Court held that “relative” includes those related by blood, marriage, or adoption — and does not include a woman with whom the husband is alleged to have an extramarital relationship.

Several related provisions of the BNS and special statutes typically appear alongside a Section 85 case:

Section 80 BNS — Dowry Death. Where the death of a woman is caused by burns or bodily injury, or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that she was subjected to cruelty or harassment in connection with a demand for dowry soon before her death — punishment is rigorous imprisonment for not less than seven years, extending to life. This corresponds to Section 304B IPC.
Section 82 BNS — Marrying again during the lifetime of husband or wife. Bigamy is criminalised.
Section 84 BNS — Enticing or detaining a married woman. Corresponds to Section 498 IPC.
The Dowry Prohibition Act, 1961. Section 3 criminalises giving or taking of dowry; Section 4 criminalises the demand for dowry.
The Protection of Women from Domestic Violence Act, 2005. A civil remedy providing for protection orders, residence orders, monetary relief, custody orders, and compensation. May be invoked independently of, or alongside, a Section 85 case.

Presumption Under Section 113B Evidence Act / Section 118 BSA 2023

Section 113B of the Indian Evidence Act, 1872 (now Section 118 of the Bharatiya Sakshya Adhiniyam, 2023) creates a presumption of dowry death. Where the question is whether a person has committed the offence of dowry death, and it is shown that soon before her death the woman had been subjected by such person to cruelty or harassment in connection with any demand for dowry, the court shall presume that such person had caused the dowry death.

This is a presumption of law — the burden shifts to the accused to rebut. The Supreme Court in Hira Lal v. State (Govt. of NCT) Delhi, (2003) 8 SCC 80 and many later decisions has emphasised the seriousness with which the presumption operates.

Procedure Under the BNSS

FIR and Investigation

Section 85 is a cognizable offence. Under Section 173 of the BNSS, the police are obliged to register an FIR on information disclosing the offence — the Lalita Kumari principle continues to apply under the BNSS. Investigation proceeds in the ordinary course.

Arrest — The Arnesh Kumar Safeguards

In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the Supreme Court laid down important safeguards against routine arrest in Section 498A cases. The Court directed that:

No automatic arrest should be made under Section 498A IPC.
Arrest should be made only after the police officer is satisfied that arrest is necessary under Section 41 of the CrPC (now Section 35 of the BNSS).
Before arrest, the officer must furnish a checklist with reasons recorded for arrest.
The Magistrate, while authorising further detention, must record satisfaction that arrest was justified.
Failure to comply with these directions may amount to misconduct on the part of the police officer.

The Arnesh Kumar safeguards continue to apply under the BNSS — Section 35 of the BNSS substantially reproduces Section 41 of the CrPC.

The Rajesh Sharma Guidelines and Subsequent Course-Correction

In Rajesh Sharma v. State of U.P., (2018) 10 SCC 472, a two-Judge Bench of the Supreme Court directed the establishment of “Family Welfare Committees” in every district to scrutinise Section 498A complaints before any arrest. The directions were widely criticised as encroaching on the legislative domain and watering down the deterrent value of the provision.

In Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443, a three-Judge Bench modified Rajesh Sharma. It held that the directions for Family Welfare Committees encroached on the legislative field and were not sustainable. The Court reiterated the Arnesh Kumar checklist as the operative safeguard against arbitrary arrest, but directed that complaints should be investigated by officers trained to handle sensitive matters.

Bail

Section 85 BNS is non-bailable, but bail may be granted by the Magistrate or the Court of Session under Section 480 of the BNSS (corresponding to Section 437 CrPC) or by the High Court under Section 483 BNSS (Section 439 CrPC). In practice, given the Arnesh Kumar safeguards, anticipatory bail under Section 482 BNSS (Section 438 CrPC) is frequently granted in Section 85 cases where the allegations do not disclose an immediate threat to the complainant.

Trial

Trial is held before the Magistrate of First Class. The procedure is the warrant-case procedure under Sections 261 to 273 of the BNSS (Chapter XIX of the CrPC).

Quashing

The High Court has inherent power under Section 528 of the BNSS (Section 482 CrPC) to quash an FIR or proceeding where:

The dispute has been resolved between the parties and continuation of the proceeding would amount to abuse of the process of court (Gian Singh v. State of Punjab, (2012) 10 SCC 303);
The allegations are inherently improbable;
There is no prima facie case.

In Geeta Mehrotra v. State of U.P., (2012) 10 SCC 741 and Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667, the Supreme Court expressed concern at the practice of routinely implicating all relatives of the husband and exhorted courts to scrutinise allegations against distant relatives carefully.

In Kahkashan Kausar v. State of Bihar, (2022) 6 SCC 599, the Supreme Court reiterated that general and omnibus allegations against the husband’s relatives, without specific instances, should be carefully examined and may merit quashing where no prima facie case is made out.

Civil and Matrimonial Remedies in Parallel

A Section 85 BNS complaint does not exclude — and is often filed alongside — civil and matrimonial remedies:

Protection of Women from Domestic Violence Act, 2005 (DV Act)

A civil enactment that does not prescribe imprisonment for the respondent. The aggrieved woman may seek:

A protection order under Section 18 — restraining the respondent from committing acts of domestic violence;
A residence order under Section 19 — protecting the aggrieved woman’s right to reside in the shared household;
A monetary relief order under Section 20 — for maintenance and expenses;
A custody order under Section 21 — for temporary custody of children;
A compensation order under Section 22 — for injuries including mental torture.

Proceedings are before the Magistrate of First Class under Section 27 of the DV Act.

Maintenance

A married woman may seek maintenance under Section 144 of the BNSS (formerly Section 125 CrPC) or under the relevant personal law statute (Hindu Marriage Act, 1955, Hindu Adoptions and Maintenance Act, 1956, Muslim Women (Protection of Rights on Divorce) Act, 1986, and others).

Divorce, Restitution, and Judicial Separation

Where the cruelty amounts to a matrimonial offence, the aggrieved spouse may file for divorce or judicial separation under the relevant personal law statute. The standard of cruelty for matrimonial purposes is distinct — and the standard of proof is the civil standard of preponderance of probabilities, not the criminal standard.

Compoundability

In most States, Section 498A IPC (and now Section 85 BNS) is non-compoundable — i.e., parties cannot settle the matter and have the case dismissed merely on the basis of a private compromise. Some States (Andhra Pradesh) have notified Section 498A as compoundable with the permission of the court. In States where the offence is non-compoundable, the parties may still approach the High Court under Section 528 BNSS for quashing on the ground of settlement, following Gian Singh v. State of Punjab.

The Course-Correction Debate

The Supreme Court and the Law Commission have, over the years, examined whether Section 498A is being misused — and whether the safeguards adopted (Family Welfare Committees, Arnesh Kumar checklist) have undermined the genuine cases. The 243rd Report of the Law Commission (2012) examined the issue at length. The current position, as crystallised in Social Action Forum for Manav Adhikar, recognises both the seriousness of the offence and the need for procedural safeguards against arbitrary arrest. The genuine complainant retains a robust criminal and civil remedy; the accused is protected by the Arnesh Kumar checklist, the bail jurisprudence, and the High Court’s quashing power.

Practical Steps for an Aggrieved Woman

The legal framework permits an affected person to consider the following:

Document the cruelty — diary entries, photographs of injuries, medical records, text messages, emails, and contemporaneous communications with family or friends.
File a written complaint at the local police station — Section 85 is cognizable. If the police are reluctant, escalate to the Superintendent of Police under Section 173(4) BNSS and, if necessary, approach the Magistrate under Section 175(3) BNSS.
Consider parallel civil remedies — file an application under the DV Act for protection, residence, monetary relief, and compensation orders.
Approach the Women’s Helpline (181) and the State Women’s Commission, which may render assistance.
Seek maintenance under Section 144 BNSS or under personal law if separation is contemplated.
Consult a qualified advocate to assess the strategy — criminal complaint alone, DV Act application alone, or both, and the timing of maintenance and matrimonial proceedings.

Practical Steps for a Person Accused

For an accused, the legal framework provides:

Apply for anticipatory bail under Section 482 BNSS where arrest is apprehended.
Rely on the Arnesh Kumar safeguards — the police are obliged to record reasons before arrest and to follow the Section 35 BNSS checklist.
Assess the High Court’s quashing jurisdiction under Section 528 BNSS where the allegations are inherently improbable, general, or vague — particularly against distant relatives.
Engage with the criminal proceedings carefully — cooperate with the investigation, preserve documents, and resist the temptation to issue statements that could be used at trial.
Consider mediation — many High Courts and District Courts run dedicated matrimonial mediation cells which have been effective in resolving disputes.

Useful Resources

Disclaimer: The information provided on this website is for general legal awareness and educational purposes only. It does not constitute legal advice, advertisement, or solicitation. No reader should act or refrain from acting based on this information without seeking professional legal counsel. Advocate Akhil Singh and this website are not liable for any actions taken based on the content provided herein.