By S&S Co. Advocates & Solicitors · Published 28 September 2026 · Informational content, not legal advice: see our disclaimer
Overview
A practical guide for a person accused of matrimonial cruelty, and for a complainant considering a complaint, explaining the elements of the offence under its new BNS numbering, the Arnesh Kumar arrest safeguards now built into the BNSS, and the anticipatory bail route: distinct from this site's existing family-law and DV Act guides, which do not cover this criminal-law dimension of matrimonial disputes.
What You Need to Know
- Cruelty to a wife by her husband or his relatives, previously punishable under Section 498A of the Indian Penal Code, is now an offence under Section 85 of the Bharatiya Nyaya Sanhita, 2023, with 'cruelty' itself defined in Section 86 BNS; the punishment remains imprisonment up to three years plus fine, and the offence remains cognizable, non-bailable and non-compoundable
- Because the offence is cognizable, an FIR ordinarily triggers a police investigation and potential arrest, but the Supreme Court's Arnesh Kumar v. State of Bihar guidelines require that, for offences punishable with up to seven years' imprisonment (which includes Section 85 BNS), police may not arrest mechanically merely because an FIR has been registered
- An arresting officer must record reasons showing the arrest is actually necessary, applying the checklist under the arrest-necessity provision of the Code of Criminal Procedure/BNSS (such as preventing further offences, ensuring proper investigation, or preventing the accused from tampering with evidence or influencing witnesses)
- This safeguard is now built into Section 35 of the BNSS, 2023, which requires police to issue a notice of appearance instead of arresting in appropriate cases, rather than relying solely on judicial guidelines layered on top of an unchanged arrest power
- An accused who genuinely apprehends arrest on a Section 85 BNS complaint can seek anticipatory bail under Section 482 of the BNSS (the successor to Section 438 CrPC) before the Sessions Court or the High Court, and courts will examine factors such as the nature of the allegations, the accused's antecedents, and the risk of tampering with evidence or fleeing
- An accused facing a cruelty complaint should promptly gather documentary and witness evidence bearing on the specific allegations, since Indian courts have also recognised that these provisions can be misused in matrimonial disputes, and a well-documented, fact-specific defence at the bail stage is more effective than a general denial
Frequently Asked Questions
What arrest safeguards apply to a Section 498A / Section 85 BNS complaint?
Courts have directed that arrest should not be automatic on a bare complaint: police must record reasons for arrest and, in appropriate cases, Family Welfare Committees or similar screening mechanisms have been used to filter out frivolous complaints before coercive action.
Can a Section 498A complaint be quashed for being filed too late?
Yes: the Supreme Court has held that a complaint filed well beyond a reasonable period without explanation can be examined for delay, and inordinate, unexplained delay can support a quashing petition.
Is anticipatory bail available in a Section 498A / Section 85 BNS case?
Yes, anticipatory bail under the applicable BNSS provision is available and commonly sought in matrimonial cruelty cases, particularly where the allegations are general and unparticularised against extended family members.
References & Further Reading
This guide references the following statutes, rules and sources, cross-checked at the time of writing.
- Section 85/86 BNS as the successor to Section 498A IPC, with unchanged punishment and cognizable/non-bailable/non-compoundable status: confirmed via iPleaders, Vakilsearch and multiple practitioner BNS explainers at research time
- Arnesh Kumar v. State of Bihar arrest-necessity guidelines and their incorporation into Section 35 BNSS's notice-of-appearance mechanism: well-settled, confirmed via Wikipedia's Arnesh Kumar Guidelines summary and multiple practitioner sources at research time
- Anticipatory bail under Section 482 BNSS (successor to Section 438 CrPC) as the applicable route: confirmed via multiple 2025-26 BNSS transition guides at research time: verify the exact corresponding section number against the current BNSS text before citing it in the final guide, since BNSS section numbering has been a common source of practitioner error during the transition
- See also our Family Law Notable Judgments and Legal Updates: Family Law archive.