Section 85 BNS (Formerly 498A IPC): Cruelty by Husband in Kolkata

Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS) is the new cruelty-by-husband offence that replaced the well-known Section 498A of the Indian Penal Code. From 1 July 2024, every fresh matrimonial cruelty FIR in Kolkata, Howrah, and across West Bengal is registered under Section 85 BNS, with procedure governed by the Bharatiya Nagarik Suraksha Sanhita (BNSS). This guide by FileX Advocates & Legal Consultants, Kolkata explains how to file a Section 85 BNS complaint, how to defend and secure bail, and the remedies available against false cases.

What Section 85 BNS Says

Section 85 BNS reads: "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."

The definition of "cruelty" is now in Section 86 BNS (it was the Explanation to old Section 498A IPC). Cruelty means:

• Any wilful conduct likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb, or health (mental or physical); or
• Harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security, or on account of failure by her or any person related to her to meet such demand.

Section 85 BNS is cognizable, non-bailable, and non-compoundable. The maximum punishment is three years imprisonment plus fine. Because it is non-compoundable, the parties cannot simply settle and withdraw the criminal case; court intervention is required.

How to File a Section 85 BNS Complaint in Kolkata

1. Approach the local police station (e.g., women's police station or the police station where the matrimonial home was situated) with a written complaint detailing the acts of cruelty, dates, witnesses, and any supporting documents (messages, medical records, bank statements).
2. The police register an FIR under Section 173 BNSS and begin investigation. For Section 85 BNS (punishable up to 3 years), the police must follow Section 35 BNSS — record reasons before any arrest and prefer a notice of appearance under Section 35(3) BNSS over immediate arrest.
3. If the police refuse to register the FIR, the complainant can send the complaint by registered post to the Superintendent of Police (or Commissioner of Police, Kolkata) and, if still no action, approach the Magistrate under Section 223 BNSS (formerly Section 156(3) CrPC) for a direction to register and investigate.
4. The woman may also file a private complaint directly before the Magistrate under Section 223 BNSS.
5. Parallel remedies — protection order under the Protection of Women from Domestic Violence Act, 2005 (PWDVA) before the Magistrate, maintenance under Section 125 BNSS / Section 125 CrPC, and divorce on grounds of cruelty under the Hindu Marriage Act, 1955 — can proceed simultaneously.

Defending a Section 85 BNS Case in Kolkata

If you have been named as an accused — typically the husband, his parents, and sometimes distant relatives — the following steps protect your liberty and reputation:

• Apply for anticipatory bail under Section 482 BNSS before the Sessions Court (Alipore, Bankshall, Barrackpore, etc.) or the Calcutta High Court. The Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 guidelines remain binding — no automatic arrest for offences up to 7 years; the police must satisfy the Section 41/35 checklist and record reasons.
• Gather documentary evidence — marriage certificate, financial records, communication records, residence proof — to rebut vague or omnibus allegations. The Supreme Court has repeatedly cautioned against implicating distant relatives on general, sweeping allegations without specific acts.
• File for quashing under Section 528 BNSS before the Calcutta High Court if the FIR is manifestly false, an abuse of process, or a settled dispute. The High Court applies the settled parameters from State of Haryana v. Bhajan Lal (1992).
• Seek settlement-based quashing — where the parties have settled matrimonial disputes, the Calcutta High Court can quash the Section 85 BNS proceedings under Section 528 BNSS, applying Parbatbhai Aahir v. State of Gujarat (2017) and Narinder Singh v. State of Punjab (2014), even though the offence is non-compoundable.

Bail in Section 85 BNS Cases — Calcutta High Court Practice

Anticipatory bail is routinely considered in the Calcutta High Court where:

• The FIR is a counterblast to a divorce, maintenance, or child-custody proceeding.
• Allegations are general and do not attribute specific acts to each accused.
• Distant relatives (married sisters, uncles, aunts living elsewhere) are named without supporting particulars.
• The parties have entered into a settlement.

The Court typically grants protection from arrest subject to conditions such as cooperation with investigation, no tampering with evidence, and personal appearance when required. For regular bail after arrest, the Sessions Court hears the application under Section 480 BNSS.

Remedies Against False Section 85 BNS Cases

Where a complaint is demonstrably false, the accused has several remedies:

• Quashing under Section 528 BNSS before the Calcutta High Court on grounds of malafide, omnibus allegations, or settled disputes.
• Complaint of perjury under Section 340 BNSS (formerly 340 CrPC) where the complainant made false statements on oath.
• Defamation and criminal complaint for malicious prosecution under BNS Section 356 (defamation).
• Malicious prosecution damages in a civil suit after acquittal.
• The Supreme Court in Social Action Forum for Manav Adhikar v. Union of India (2018) discouraged mechanical arrests and encouraged family welfare committees to scrutinise 498A/85 BNS complaints before action.

Section 85 BNS vs Old Section 498A IPC — Key Differences

In substance, the offence is the same; the main change is structural (definition moved to Section 86) and procedural (new BNSS section numbers for bail and quashing).

Family Court Mediation and Section 85 BNS in Kolkata

Kolkata has dedicated Family Courts (under the Family Courts Act, 1984) at Alipore, Bankshall, and Barrackpore that handle the civil side of matrimonial disputes — divorce, maintenance, custody, and restitution of conjugal rights. Before a contested trial, the Family Court mandates mediation under Section 23(2) of the Family Courts Act, and parties are referred to a mediator. A successful mediation can result in a settlement that is then used to quash the parallel Section 85 BNS criminal case in the Calcutta High Court under Section 528 BNSS. This dual-track approach — criminal complaint plus civil matrimonial suit — is common in West Bengal, and resolving the civil side often unlocks closure on the criminal side.

Practical Tips for Kolkata Litigants

• Document everything — keep records of messages, bank transfers, visits, and witnesses. Specific dated allegations are easier to rebut than vague complaints.
• Avoid naming distant relatives without specific acts — courts in Calcutta frequently quash such allegations.
• Use the PWDVA in parallel — the protection, residence, and monetary reliefs under the 2005 Act are faster and more flexible than the criminal route for day-to-day safety.
• Do not delay bail — apply for anticipatory bail under Section 482 BNSS at the earliest sign of a complaint to avoid custodial interrogation.
• Settlement is possible — even though Section 85 BNS is non-compoundable, the Calcutta High Court can quash on settlement under Section 528 BNSS.

Frequently Asked Questions

Matrimonial cruelty cases under Section 85 BNS require a careful balance of protection for the aggrieved and safeguards against misuse. FileX Advocates & Legal Consultants, 14 Hare Street, Kolkata - 700001 represents both complainants and accused in cruelty, bail, and quashing matters across West Bengal. Contact us or message on WhatsApp for a confidential consultation.