Matrimonial & Family Law
Maintenance under Section 144 BNSS: Who Can Claim and How Much
Maintenance under Section 144 BNSS, formerly CrPC 125: who may claim, how the amount is fixed, interim maintenance, enforcement, and parallel remedies.
Section 498A Is Now BNS 85 and 86: What Changed and What Did Not
Cruelty to a married woman by her husband or his relatives is now prosecuted under Sections 85 and 86 of the Bharatiya Nyaya Sanhita. Section 85 creates the offence, punishable with up to three years and a fine; Section 86 defines cruelty. The substance is carried over from Section 498A IPC largely unchanged. Cases registered before 1 July 2024 continue under Section 498A.
The provisions
Section 85 BNS — whoever, being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine.
Section 86 BNS — defines cruelty as:
(a) any wilful conduct of such a nature as is likely to drive the woman to commit suicide, or to cause grave injury or danger to her life, limb or health, whether mental or physical; or
(b) harassment of the woman where it is with a view to coercing her or any person related to her to meet an unlawful demand for property or valuable security, or on account of failure by her or any person related to her to meet such demand.
Anyone familiar with Section 498A IPC will recognise this. The offence and its explanation have been split into two sections, but the substance is carried across.
What did not change
- The punishment: up to three years and a fine
- The offence remains cognizable and non-bailable
- The definition of cruelty
- The related offence of dowry death, formerly Section 304B IPC, now Section 80 BNS
- The Dowry Prohibition Act, 1961, which is untouched
What did change
Only the numbering, and the procedural code within which the case runs. The relevant BNSS provisions:
| Step | Provision |
|---|---|
| Registration of FIR | BNSS 173 |
| Notice to appear instead of arrest | BNSS 35 |
| Anticipatory bail | BNSS 482 |
| Bail by Sessions or High Court | BNSS 483 |
| Quashing by High Court | BNSS 528 |
The Arnesh Kumar safeguards
This remains the single most important practical protection in these cases.
In Arnesh Kumar v. State of Bihar (2014) the Supreme Court, dealing directly with Section 498A, held that for offences punishable with imprisonment of up to seven years, police must not arrest automatically on registration of an FIR. Instead they should:
- Satisfy themselves that arrest is necessary under the parameters now in Section 35 BNSS
- Issue a notice to appear where arrest is not necessary
- Record reasons in writing where an arrest is made
- Forward the reasons to the Magistrate, who must be satisfied before authorising detention
These directions apply equally to Sections 85 and 86 BNS, since the punishment is the same.
If a notice under Section 35 BNSS arrives, it is not an arrest. Attending is generally advisable, because failure to comply is itself a ground for arrest. Take advice first, take the notice with you, and do not sign a statement you have not read.
How these cases are commonly defended
The approach depends entirely on the facts, but the recurring lines are:
- Anticipatory bail under Section 482 BNSS, moved promptly. Because the offence is non-bailable, this is usually the first step.
- Challenging omnibus allegations. Where an FIR names a wide circle of relatives without attributing any specific act to each, the courts have repeatedly held that the proceeding cannot be sustained against those persons. In Geeta Mehrotra v. State of UP and a long line of later cases, the Supreme Court and High Courts have quashed proceedings against relatives on that ground.
- Quashing on compromise under Section 528 BNSS, where the parties have genuinely settled. Matrimonial disputes fall within the category where the High Court may quash despite the offence being non-compoundable, following Gian Singh v. State of Punjab.
- Territorial jurisdiction. Following Rupali Devi v. State of UP, a complaint may be filed where the woman took shelter after leaving the matrimonial home, which widens rather than narrows the available forums — worth checking in every case.
- Trial, where the case must be met on the evidence.
A necessary word of balance
Sections 85 and 86 exist because cruelty within marriage is real and was for a long time effectively unpunishable. The safeguards described above exist because the courts have also observed misuse in some cases. Both things are true, and neither is a reason to treat a particular case as fitting a pattern before its facts are known.
What can be said generally is that these matters are usually best resolved, where resolution is possible, rather than fought to the end — and that the earlier advice is taken, the more options remain open.
Related
Frequently asked questions
Is Section 498A still in force?
Section 498A IPC continues to govern cases where the FIR was registered before 1 July 2024, through to their conclusion. For offences committed on or after that date, the corresponding provisions are Sections 85 and 86 of the Bharatiya Nyaya Sanhita. Both will be seen in the courts for years.
Is an offence under BNS 85 bailable?
It is non-bailable and cognizable, as Section 498A was. That means bail is at the discretion of the court rather than a matter of right. Because the punishment is up to three years, the Arnesh Kumar safeguards apply and police should ordinarily issue a notice under Section 35 BNSS rather than arrest immediately.
Can elderly parents-in-law named in the FIR get relief?
The courts have repeatedly deprecated the practice of naming all family members without specific allegations against each. Where the FIR contains only omnibus allegations against relatives, the High Court has quashed proceedings against them under what is now Section 528 BNSS. Each case turns on whether specific acts are attributed.
Can a case under BNS 85 be settled?
Matrimonial disputes are treated as essentially private in character, and following Gian Singh v. State of Punjab the High Court may quash proceedings on the basis of a genuine compromise. The court will satisfy itself that the settlement is voluntary. Where a dowry death under Section 80 is alleged, that course is not available.
What is the difference between Section 85 and Section 86?
Section 85 is the offence-creating provision: it punishes a husband or a relative of a husband who subjects a woman to cruelty. Section 86 is the definition clause, setting out what cruelty means — wilful conduct likely to drive a woman to suicide or cause grave injury, or harassment to coerce an unlawful demand for property.