In India, Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaces Section 498A of the Indian Penal Code, 1860 (IPC) for cruelty to a married woman by her husband or his relatives from 1 July 2024. Section 86 BNS now carries the definition of cruelty. The words, the three-year maximum, conditional cognizability and non-compoundability are unchanged.
At a glance
| Old law — IPC s.498A | New law — BNS ss.85–86 | |
|---|---|---|
| Offence | Husband or relative of husband subjecting a woman to cruelty | Same |
| Definition of cruelty | Explanation to s.498A, clauses (a) and (b) | s.86, clauses (a) and (b) |
| Punishment | Imprisonment up to 3 years, and liable to fine | Same |
| Cognizable | Only if information is given by the woman, a relative by blood, marriage or adoption, or (if none) a notified public servant | Same words (BNSS First Schedule) |
| Bailable / triable by | Non-bailable / Magistrate of the first class | Same |
| Compoundable | No (absent from CrPC s.320) | No (absent from BNSS s.359) |
| Who may set the court in motion | CrPC s.198A | BNSS s.220 (same words) |
| Change type | — | Modified (structure only) |
What changed
- Identical — Offence and punishment words: "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."
- Minor edit — The Explanation becomes a separate section (s.86). Its opening changes from "Explanation.—For the purposes of this section, "cruelty" means—" to "For the purposes of section 85, "cruelty" means—".
- Identical — Clause (a), wilful conduct likely to drive the woman to suicide or to cause grave injury or danger to life, limb or health (mental or physical).
- Identical — Clause (b), harassment to coerce her or a relative to meet an unlawful demand for property or valuable security, or on account of failure to meet it.
- Minor edit — Placement. IPC s.498A stood alone in Chapter XXA, "Of cruelty by husband or relatives of husband", inserted by Act 46 of 1983 with effect from 25 December 1983. BNS ss.85–86 sit under the heading "Of offences relating to marriage" in the Chapter on offences against woman and child.
- Identical — First Schedule classification, word for word.
- Identical — Not compoundable.
- Minor edit — Consequential cross-references. BSA s.117 (presumption as to abetment of suicide) now defines "cruelty" by reference to "section 86 of the Bharatiya Nyaya Sanhita, 2023"; IEA s.113A referred to "section 498A of the Indian Penal Code". BNSS s.220 replaces CrPC s.198A with the same text.
Statutory text (relevant extract)
IPC s.498A (original text)
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.
Explanation.—For the purposes of this section, "cruelty" means— (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.
BNS s.86 (Gazette text, opening words)
For the purposes of section 85, "cruelty" means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide …
The rest of s.86, and all of s.85, reads exactly as the IPC text above.
How it works — ingredients
Section 85 has three elements:
- The woman is the wife of the accused, or of the person whose relative the accused is.
- The accused is the husband or "the relative of the husband". Section 2 BNS does not define "relative".
- Cruelty within s.86 — either limb is enough.
The two limbs of s.86:
| Limb | What must be shown | What it does not require |
|---|---|---|
| (a) | Wilful conduct of a nature likely to drive her to suicide, or to cause grave injury or danger to life, limb or health, mental or physical | No actual suicide or injury; the test is the likely effect of the conduct |
| (b) | Harassment with a view to coercing her or a relative to meet an unlawful demand for property or valuable security, or because of a failure to meet such a demand | No physical harm; the demand-linked harassment is itself cruelty |
How s.85 connects to other provisions. Cruelty "for, or in connection with, any demand for dowry" soon before an unnatural death within seven years of marriage is an ingredient of dowry death under BNS s.80(1). Where a woman dies by suicide within seven years of marriage and the husband or his relative had subjected her to cruelty as defined in s.86, the court may presume abetment under BSA s.117.
What this means in practice
Going to the police. Section 85 is cognizable only when the information comes from the woman, a relative by blood, marriage or adoption, or, failing any relative, a notified public servant (BNSS First Schedule). The punishment is three years, so it falls within BNSS s.173(3): on a reading of that sub-section, the officer in charge may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, hold a preliminary enquiry of up to fourteen days to see whether a prima facie case exists, or proceed with investigation where one exists.
Going to court. Under BNSS s.220, a court may take cognizance only on a police report, or on a complaint by the woman, her father, mother, brother or sister, or her father's or mother's brother or sister. Any other relative by blood, marriage or adoption may complain with the court's leave. The limitation period is three years (BNSS s.514(2)(c)).
Arrest. BNSS s.35(1)(b) allows arrest without warrant for an offence punishable with up to seven years only where the officer has reason to believe the offence was committed and is satisfied that arrest is necessary for a listed purpose, such as preventing further offences or tampering with evidence. Reasons must be recorded, and reasons for not arresting must also be recorded (proviso). Where arrest is not required, a notice to appear must issue (s.35(3)). A person who complies with it shall not be arrested unless the officer, for recorded reasons, thinks arrest necessary (s.35(5)). The Arnesh Kumar directions below were framed on the CrPC equivalents, ss.41 and 41A.
Bail. The offence is non-bailable, so bail is discretionary (BNSS s.480), and anticipatory bail may be sought from the Sessions Court or High Court (s.482).
Settlement and quashing. Section 85 cannot be compounded (BNSS s.359(9)). Where parties settle, or the allegations do not disclose the offence, the route is the High Court, whose inherent powers "to prevent abuse of the process of any Court or otherwise to secure the ends of justice" are saved by BNSS s.528, in the same words as CrPC s.482.
Drafting a complaint. State for each accused what he or she did, when, and which limb of s.86 it engages. Kahkashan Kausar and Achin Gupta (below) quashed proceedings where allegations against relatives were general and omnibus.
Judgments that still matter
Sections 85 and 86 repeat the words of s.498A, and the Supreme Court itself said so in Achin Gupta. On a reading of the text, judgments construing s.498A remain relevant. No judgment applying BNS s.85 or s.86 was read for this page.
Sushil Kumar Sharma v. Union of India, [2005] Supp. 1 S.C.R. 730 (2005 INSC 299) — decided 19 July 2005 by Arijit Pasayat and H.K. Sema JJ; judgment by Pasayat J. A writ petition asked the Court to declare s.498A unconstitutional because of false complaints. The Court declined: if a provision is otherwise valid, "mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional". It said it is for the legislature to amend, modify or repeal a misused provision, and that the provision "is intended to be used a shield and not assassins' weapon". The petition was disposed of. Why it matters: the text the Court upheld is the text Parliament re-enacted in ss.85–86.
Arnesh Kumar v. State of Bihar, [2014] 8 S.C.R. 128 (2014 INSC 463) — decided 2 July 2014 by Chandramauli Kr. Prasad and Pinaki Chandra Ghose JJ. The Court directed that State Governments instruct police "not to automatically arrest when a case under Section 498-A of the IPC is registered" but to assess the necessity of arrest under s.41 CrPC. Police were to use a checklist and forward reasons to the Magistrate, and Magistrates were to authorise detention only after recording satisfaction. A decision not to arrest was to be sent to the Magistrate within two weeks, and a s.41A notice served within two weeks. Non-compliance was to attract departmental action and contempt (para 14). The directions extend to all offences punishable with imprisonment up to seven years (para 15). Why it matters: BNSS s.35 carries the substance of CrPC ss.41 and 41A into one section, including the necessity conditions, the duty to record reasons and the notice of appearance. On a reading of the text the directions apply to the successor provision, though they are judicial directions and not part of s.35.
Kahkashan Kausar @ Sonam v. State of Bihar, [2022] 1 S.C.R. 558 (2022 INSC 163) — decided 8 February 2022 by S. Abdul Nazeer and Krishna Murari JJ; judgment by Murari J. The FIR said "all accused harassed her mentally" without attributing a specific role to any in-law. The Court held the allegations "general and omnibus" and said allowing prosecution without clear allegations against in-laws "would simply result in an abuse of the process of law" (paras 19, 21). The FIR against the in-laws was quashed. Why it matters: the test is about what s.85's words require of each accused, and those words are unchanged.
Achin Gupta v. State of Haryana, [2024] 6 S.C.R. 129 (2024 INSC 369) — decided 3 May 2024 by J.B. Pardiwala and Manoj Misra JJ; judgment by Pardiwala J. Quashing a s.498A case (with ss.323, 406 and 506) against a husband, the Court said that making a person face trial "on some general and sweeping allegations without bringing on record any specific instances of criminal conduct" is an abuse of process (para 25). Where the Court is convinced that the complainant's involvement of her husband and his close relatives has an oblique motive, it should "read in between the lines" (para 31). It then examined ss.85 and 86 BNS and said: "The aforesaid is nothing but verbatim reproduction of Section 498A of the IPC" (para 39). It requested the Legislature "to look into the issue as highlighted above taking into consideration the pragmatic realities" (para 40; the rest of para 40 is not legible in the corpus text, so this page states nothing further about it). Why it matters: it is the Supreme Court's own comparison of the old and new text. The Gazette text of ss.85–86 read for this page is the same text the Court compared.
Which law applies to your case
BNS s.358(2) keeps penalties and proceedings for offences committed against the IPC alive "as if that Code had not been repealed", and Article 20(1) of the Constitution ties the penalty to the law in force when the offence was committed. On a reading of those provisions, cruelty committed before 1 July 2024 is charged under IPC s.498A. The words and punishment are the same, so the practical difference is the provision cited. BNSS s.531(2)(a) keeps matters pending on 1 July 2024 under the CrPC. See Offence before 1 July 2024 — which law applies.
Frequently asked questions
What is the BNS equivalent of Section 498A IPC? Section 85 of the Bharatiya Nyaya Sanhita, 2023 replaces Section 498A IPC for offences committed on or after 1 July 2024, and Section 86 BNS carries the definition of cruelty that was the Explanation to Section 498A. The words of the offence, the punishment and the two limbs of cruelty are the same. In Achin Gupta (2024) the Supreme Court described Sections 85 and 86 as a verbatim reproduction of Section 498A.
What is the punishment under Section 85 BNS? Imprisonment for a term which may extend to three years, and the offender shall also be liable to fine. This is the same punishment as under Section 498A IPC. There is no minimum sentence.
Is Section 85 BNS cognizable and bailable? It is non-bailable and triable by a Magistrate of the first class. It is cognizable only if the information is given to the officer in charge of a police station by the woman, by a person related to her by blood, marriage or adoption, or, if there is no such relative, by a public servant of a class notified by the State Government. The BNSS First Schedule uses the same words the CrPC First Schedule used for Section 498A.
Can a Section 85 BNS case be compromised? Not by compounding. Section 85 BNS appears in neither table in BNSS Section 359, and Section 359(9) provides that no offence shall be compounded except as provided by that section; Section 498A IPC was likewise absent from CrPC Section 320. A settlement can be placed before the High Court, whose inherent powers are saved by BNSS Section 528.
Can the police arrest immediately on a Section 85 BNS complaint? BNSS Section 35(1)(b) permits arrest without warrant for such an offence only if the officer has reason to believe the offence was committed and is satisfied that arrest is necessary for a listed purpose, recording reasons in writing. Where arrest is not required, Section 35(3) requires a notice to appear. In Arnesh Kumar (2014) the Supreme Court directed that police must not arrest automatically in Section 498A cases.
Who can file a complaint under Section 85 BNS? Under BNSS Section 220, a court may take cognizance only on a police report, or on a complaint by the woman, her father, mother, brother, sister, or her father's or mother's brother or sister. Any other relative by blood, marriage or adoption may complain with the court's leave. This repeats CrPC Section 198A.
Can in-laws be prosecuted on general allegations? In Kahkashan Kausar (2022) the Supreme Court quashed a Section 498A FIR against in-laws because the allegations were general and omnibus, with no specific role attributed to any of them. In Achin Gupta (2024) it held that making a person face trial on general and sweeping allegations without specific instances is an abuse of process. The words of Section 85 BNS are the same, so on a reading of the text these tests carry over.
Does Section 85 BNS protect husbands or apply to live-in partners? The text of Section 85 applies where the husband, or a relative of the husband, of a woman subjects that woman to cruelty. It creates no offence of cruelty against a husband. Section 2 BNS does not define 'relative', and this page does not address live-in relationships because no judgment on that question was read.
Related
- Section 304B IPC vs Section 80 BNS — dowry death
- Sections 113A-113B IEA vs BSA — presumptions in dowry and suicide cases
- Section 306 IPC vs BNS — abetment of suicide
- Police notice to appear — BNSS s.35 vs CrPC s.41A
- Section 482 CrPC vs Section 528 BNSS — inherent powers of the High Court
- Offence before 1 July 2024 — which law applies
- Sections 195, 198 and 198A CrPC vs Sections 215, 219 and 220 BNSS — Restrictions on Prosecution: Complaint by Public Servant, Court or Person Aggrieved
Sources
Acts and sections read (primary text):
- Bharatiya Nyaya Sanhita, 2023 (Gazette of India, CG-DL-E-25122023-250883): ss.2, 80, 85, 86, 358.
- Indian Penal Code, 1860 (original text): s.498A and Chapter XXA heading with its Act 46 of 1983 footnote.
- Bharatiya Nagarik Suraksha Sanhita, 2023: ss.35, 173, 220, 359, 480, 482, 514, 528, 531(2)(a); First Schedule entry for BNS s.85.
- Code of Criminal Procedure, 1973: ss.198A, 320, 482; First Schedule entry for IPC s.498A.
- Bharatiya Sakshya Adhiniyam, 2023: s.117. Indian Evidence Act, 1872: s.113A. Constitution of India: Article 20(1).
Judgments read (Supreme Court, judgment text):
- Sushil Kumar Sharma v. Union of India, [2005] Supp. 1 S.C.R. 730 — corpus file
S_2005_1_730_737_EN.md. - Arnesh Kumar v. State of Bihar, [2014] 8 S.C.R. 128 — corpus file
2014_8_128_143_EN.md. - Kahkashan Kausar @ Sonam v. State of Bihar, [2022] 1 S.C.R. 558 — corpus file
2022_1_558_569_EN.md. - Achin Gupta v. State of Haryana, [2024] 6 S.C.R. 129 — corpus file
2024_6_129_163_EN.md.
This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.