The Bharatiya Nyaya Sanhita (BNS), 2023 re‑numbered and, in some places, re‑worded offenses from the Indian Penal Code. Section 85 of the BNS corresponds to the old Section 498A of the IPC – the provision dealing with cruelty by husband or his relatives against a married woman.
Contrary to some early speculation, the substantive law on matrimonial cruelty has not changed. The definition of cruelty, the ingredients of the offense, and the punishment remain the same. What has changed are the procedural safeguards – specifically, the mandatory requirement of a preliminary inquiry and notice to the accused before arrest.
1. BNS Section 85 – Text of the Provision
Section 85 of the BNS reads substantially the same as IPC Section 498A: Husband or relative of husband subjecting a woman to cruelty is punishable with imprisonment up to 3 years and fine. "Cruelty" includes willful conduct likely to drive the woman to suicide, cause grave injury, or harassment for dowry.
The punishment, bail provisions, and compoundability are unchanged. The only significant difference lies in Section 173 of the BNSS (new CrPC), which adds safeguards against arbitrary arrest in cases punishable with up to 7 years imprisonment – and this includes Section 85 BNS.
Citation: Bharatiya Nyaya Sanhita, 2023, Section 85; Bharatiya Nagarik Suraksha Sanhita, 2023, Section 173(3).
2. What Has NOT Changed (Substance)
- Definition of cruelty: Same as under IPC Section 498A – physical or mental cruelty, dowry harassment, driving to suicide.
- Punishment: Up to 3 years imprisonment + fine (no change).
- Cognizable and non‑bailable: The offense remains cognizable and non‑bailable – police can arrest without warrant, but with safeguards.
- Non‑compoundable: Cannot be settled without court permission, except in limited circumstances as per Supreme Court guidelines.
3. What HAS Changed – Procedural Safeguards
Under Section 173(3) of the BNSS, for offenses punishable with imprisonment between 3 and 7 years (which includes Section 85 BNS), the police must:
- Conduct a preliminary inquiry before registering an FIR, if the information does not disclose a cognizable offense prima facie.
- Issue a notice of appearance to the accused before making an arrest, giving them an opportunity to cooperate with the investigation.
- Record reasons in writing if arrest is still considered necessary.
These safeguards were introduced to prevent arbitrary arrests in matrimonial disputes, a long‑standing grievance of husbands and in‑laws. The Supreme Court in Arnesh Kumar v. State of Bihar (2014) had already laid down guidelines to discourage automatic arrests. The BNSS now incorporates those guidelines into statutory law.
Citation: BNSS, 2023, Section 173(3); Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
4. Practical Impact on Section 85 BNS Cases
| Aspect | Under IPC Section 498A | Under BNS Section 85 + BNSS |
|---|---|---|
| Arrest on filing of FIR | Often automatic, leading to immediate arrest | Notice issued first; arrest only if justified |
| Preliminary inquiry before FIR | Not mandatory | Mandatory where no cognizable offense is apparent |
| Anticipatory bail | Available but courts reluctant | Remains available; safeguards reduce need for urgent bail |
| Misuse deterrence | Low – many complaints filed with malafide intent | Increased – preliminary inquiry filters frivolous cases |
5. How HLAPL Can Help in BNS Section 85 Cases
At Hashmi Law Associates (HLAPL), we represent both complainants and accused in matrimonial cruelty cases:
- For Complainants: Drafting complaints, evidence gathering, ensuring police comply with the law, obtaining protection orders.
- For Accused: Seeking quashing of frivolous FIRs, anticipatory bail, representation before preliminary inquiry officers, challenging illegal arrests.
- Family Law Advisory: Advising on settlement, divorce, maintenance, and child custody in parallel with criminal proceedings.
Contact our criminal law experts in New Delhi for advice on BNS Section 85 matters.
Citation: Bharatiya Nyaya Sanhita, 2023, Section 85; Bharatiya Nagarik Suraksha Sanhita, 2023, Section 173(3); Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273; Delhi High Court in Rajesh Sharma v. State, 2025 SCC OnLine Del 2456.