Section 498A: BNS 85–86 and Arnesh Kumar Guidelines

1. Safety and lawful response come first

If you face violence, threats or coercion at home, move to a safe place where possible and seek emergency assistance or medical treatment. Preserve treatment records and describe injuries accurately. A trusted person can help with practical arrangements, but no one should pressure you into a settlement that exposes you to further danger.

If you are named in a cruelty complaint, obtain legal advice and preserve relevant communications, travel records and financial documents. Do not delete chats, retaliate against the complainant or contact witnesses to shape their accounts. Ask for details of any police communication and respond to a lawful notice through the proper process.

Both safety and fair procedure matter. A genuine complaint does not justify automatic arrest, and arrest safeguards do not make cruelty lawful or prevent police from investigating supported allegations.

2. How section 498A maps to BNS 85 and 86

BNS section 85 [IPC section 498A, punishment component] punishes a husband or his relative for subjecting a woman to cruelty. It provides imprisonment up to three years and liability to fine. BNS section 86 [IPC section 498A, Explanation] defines cruelty for this purpose.

The definition includes wilful conduct likely to drive the woman to suicide or cause grave injury or danger to life, limb or mental or physical health. It also includes harassment aimed at coercing an unlawful demand for property or valuable security, or harassment because such a demand was not met.

Not every disagreement, rude exchange or unhappy marriage necessarily satisfies this criminal definition. Equally, cruelty need not be limited to visible injuries. The new laws apply from 1 July 2024; offences before that date remain under the IPC. Allegations spanning that date need individual legal assessment.

Need help with this? Read our guide to Anticipatory Bail under Section 482 BNSS.

3. What Arnesh Kumar requires

In Arnesh Kumar v. State of Bihar (2014), the Supreme Court addressed unnecessary arrests in section 498A cases and the wider category of offences punishable up to seven years. Police were directed not to arrest automatically merely because an offence had been registered.

The judgment requires attention to the statutory necessity grounds, such as preventing further offending, ensuring proper investigation, preventing destruction of evidence or witness intimidation, and securing appearance. Reasons and supporting material must be documented. Magistrates must independently examine the basis for detention rather than authorise it mechanically.

The present framework appears in BNSS section 35 [CrPC sections 41 and 41A]. The statutory text and the judgment should be read together. Arnesh Kumar is not a promise that arrest can never occur; it requires a reasoned, legally justified decision in place of routine detention.

4. Police appearance notices are not optional

Where arrest is not required under the applicable conditions, BNSS section 35 [CrPC sections 41 and 41A] provides for a notice directing appearance. Take it seriously. Check the officer, station, date and reference details. Keep a copy and record attendance or any written request for a reasonable change supported by genuine circumstances.

A person who complies and continues to comply with the notice should not be arrested for the offence referred to in it unless the officer records reasons why arrest is necessary. This protection is important, but it is not absolute immunity and should not be presented as a licence to ignore investigation.

Additional protection applies under BNSS section 35(7) [a new safeguard without an identical CrPC counterpart] to infirm persons or those above sixty for offences punishable with less than three years. The three-year maximum for BNS section 85 means this provision should not casually be assumed to cover that charge.

5. Bail and the magistrate’s role

BNS section 85 [IPC section 498A] is non-bailable. Its cognizable classification is subject to the conditions stated in the procedural schedule concerning who supplies the information. Non-bailable does not mean that release is impossible, and it does not remove the need to justify arrest.

Anticipatory bail is addressed in BNSS section 482 [CrPC section 438]. Bail in non-bailable cases and the higher courts’ powers are addressed in BNSS sections 480 and 483 [CrPC sections 437 and 439]. The proper route depends on custody status and the applicable procedure. Filing an application alone does not create protection.

If arrested, ask that a lawyer and an appropriate relative or friend be informed through the statutory process. The magistrate must assess remand lawfully. Families should bring medical needs and any relevant notice-compliance record to counsel’s attention rather than assume every detention request must be accepted.

6. Evidence, specific roles and overlapping remedies

A useful complaint gives dates or approximate periods, particular acts, the people involved, demands made and supporting records. Preserve messages, medical papers, bank transfers and witness details. Explain each person’s alleged role. Naming every relative without describing conduct can weaken the factual presentation and create avoidable legal disputes.

In Kahkashan Kausar v. State of Bihar (2022), the Supreme Court addressed general and omnibus allegations against relatives in a matrimonial prosecution. The decision does not immunise relatives who participated in cruelty. It reinforces the importance of assessing specific allegations rather than assuming liability solely from family relationship.

Criminal proceedings may overlap with protection, residence, maintenance or compensation remedies under the Protection of Women from Domestic Violence Act, 2005. Divorce and maintenance raise separate issues. A criminal complaint does not automatically grant divorce, resolve custody or decide ownership of every disputed asset.

7. Settlement without pressure or false promises

Central-law treatment of this offence is non-compoundable; applicable state amendments must also be checked. A private settlement or withdrawal letter does not automatically close the FIR. The High Court may consider an appropriate quashing request under BNSS section 528 [CrPC section 482], applying the governing principles and examining the circumstances.

Do not confuse BNSS section 482 [CrPC section 438], which concerns anticipatory bail, with BNSS section 528 [CrPC section 482], which concerns inherent High Court powers. The repeated number across old and new laws can cause serious confusion in online advice and drafted applications.

Any settlement should be voluntary, clear and legally reviewed, addressing related proceedings and implementation where appropriate. Never breach a protection order or bail condition to negotiate. Women and people in custody can approach the District Legal Services Authority to check access to free legal assistance.

Is a Family Welfare Committee report required before police act?

No universal Family Welfare Committee screening requirement should be treated as a condition for investigating matrimonial cruelty. In Social Action Forum for Manav Adhikar v. Union of India (2018), the Supreme Court modified earlier directions that had introduced such committees and restricted action pending their reports. Arnesh Kumar safeguards against unnecessary arrest remain important, but they are different from imposing an extra-statutory screening barrier. A complainant facing continuing danger should not be told that meaningful police action must always await a committee’s approval.

At the same time, the absence of mandatory committee screening does not require immediate arrest. Police must apply BNSS section 35 [CrPC sections 41 and 41A] and the relevant necessity safeguards. Families should distinguish voluntary counselling, any lawful preliminary inquiry and the investigation itself. If mediation is suggested, ask whether attendance is voluntary or directed by a competent authority and whether urgent protection is being addressed separately. Participation should not require surrendering records, abandoning legal advice or returning to a place where safety is genuinely at risk.

Can protection and financial relief be sought without waiting for conviction?

The Protection of Women from Domestic Violence Act, 2005 provides a separate route to protection orders, residence-related relief, monetary relief and other remedies where its requirements are met. A woman need not first obtain a conviction under BNS section 85 [IPC section 498A] before seeking that statutory protection. The two proceedings have different purposes and legal requirements. A shared household dispute or urgent financial need should therefore be discussed independently with counsel rather than postponed on the assumption that the criminal trial must finish first.

Prepare an immediate-needs summary covering accommodation, children, essential expenses, medical care and any existing orders. Disclose parallel proceedings and payments accurately so the court can consider overlapping relief and avoid inconsistent positions. An accused person should respond through the appropriate proceeding rather than assume that bail determines residence or maintenance rights. Neither side should use access to children, belongings or necessary medicines as leverage. Coordinating the remedies can address present safety and subsistence while leaving criminal responsibility to be determined through the separate investigation and trial process.