Matrimonial criminal defence

A criminal complaint arising out of a marriage is heard in a different court, on a different standard, from the divorce. It also changes the negotiating position in every other proceeding, which is why it has to be handled early and precisely.

• s. 85 BNS (was 498A IPC)
• s. 86 BNS — cruelty defined
• s. 80 BNS — dowry death
• s. 482 BNSS — anticipatory bail
• s. 528 BNSS — quashing
• s. 35 BNSS — notice

The provisions, old and new

On 1 July 2024 the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam replaced the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act. Matters registered before that date continue under the old statutes; matters registered afterwards proceed under the new ones. Both numbering systems are therefore in circulation, and papers in a single family often carry both.

What section 85 requires

Section 85 punishes a husband or a relative of a husband who subjects a woman to cruelty. Section 86 defines cruelty for this purpose as wilful conduct of a nature likely to drive the woman to suicide or to cause grave injury or danger to her life, limb or health, whether mental or physical; or harassment with a view to coercing her or a person related to her to meet an unlawful demand for property or valuable security, or on account of failure to meet such a demand. The offence is cognizable and non-bailable.

The two limbs matter in defence. The first requires conduct of a defined gravity; the second requires an unlawful demand. Generalised allegations of harassment, without particulars of what was demanded, by whom, when and in what terms, are the weakest form the complaint takes, and courts have repeatedly deprecated the practice of arraying every member of a family without any specific role attributed to each.

Arrest is not automatic

For offences punishable with imprisonment of less than seven years, the police are required to issue a notice of appearance rather than arrest as a matter of course, and to record reasons where arrest is considered necessary. The Supreme Court's directions in Arnesh Kumar v. State of Bihar (2014) remain the leading statement of this, and the equivalent obligation now appears in section 35 BNSS. Family Welfare Committees and comparable pre-arrest screening arrangements have been directed and subsequently modified by the courts over the years, and the position varies; the current practice in the district should be confirmed rather than assumed.

Anticipatory and regular bail

Where arrest is apprehended, an application under section 482 BNSS may be moved before the Court of Session or the High Court. Where arrest has already been made, bail is sought under sections 480 to 483 BNSS depending on the court. The material that matters in a matrimonial bail application is usually documentary: the chronology of the marriage and the separation, the sequence in which civil and criminal proceedings were filed, the applicant's roots in the community and employment, and the absence of any allegation of a specific overt act against a particular relative.

Quashing under section 528 BNSS

The High Court's inherent power, now in section 528 BNSS, allows it to quash an FIR or a complaint to prevent abuse of process or to secure the ends of justice. The framework in State of Haryana v. Bhajan Lal (1992) still governs the categories in which the power is exercised. In matrimonial matters two routes are common:

• Quashing on the merits, where the allegations taken at their highest do not disclose the ingredients of the offence, or where a relative has been implicated without any attributed act.
• Quashing on settlement, where the parties have compromised the entire dispute. Because the offence is not compoundable in the ordinary way, the High Court's power is invoked to give effect to the settlement. Following Gian Singh v. State of Punjab and later decisions, the court considers whether the offence is essentially private and matrimonial in character and whether continuing the prosecution would serve any purpose. Quashing is not a formality even where both sides consent.

If you are the complainant

The same chambers work applies from the other side. A complaint that is specific about incidents, dates, demands and the persons involved is materially stronger than one that is not, and contemporaneous records — medical documents, messages, transfers of money, statements to the police at the time — carry far more weight than a later narrative. Where a complaint has been registered and no action follows, the remedies include an application under section 175 BNSS and a protest petition.

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