The short answer: Section 498A of the old Indian Penal Code did not go away when the Bharatiya Nyaya Sanhita (BNS) replaced the IPC on 1 July 2024. It was re-enacted almost word for word and split across two sections. The offence — a husband or his relative subjecting a woman to cruelty — and its punishment, up to three years’ imprisonment with a fine, now sit in Section 85 BNS. The definition of “cruelty” (क्रूरता) that used to appear as an Explanation inside Section 498A now has its own provision, Section 86 BNS. Nothing about who can be charged, what has to be proved, or how serious the offence is has changed — only the numbering and the code it belongs to.
Why the section split happened
Before 1 July 2024, the IPC set out Section 498A as a single, dense provision: the offence, the punishment and the definition of cruelty all sat in one section, with the definition tucked into an Explanation at the end. The BNS restructures a number of former IPC provisions this way — separating the operative offence from its definitions into their own numbered sections, so each does one job. That is why what was one section became two: Section 85 creates the offence and fixes the punishment; Section 86 defines the term the offence turns on. Anyone drafting a complaint, a chargesheet or a bail application after 1 July 2024 who still cites “498A” is citing a provision that no longer exists in the applicable code — the FIR and every subsequent document need to cite Section 85 (and, where the facts turn on the definition, Section 86) instead.
What Section 85 actually punishes
Section 85 applies to a husband, or a relative of the husband, who subjects a woman to cruelty. It carries imprisonment which may extend to three years, along with a fine. The offence is cognizable — the police can register an FIR and investigate without needing a magistrate’s prior order — and non-bailable, meaning bail is granted or refused at the court’s discretion rather than being available as of right. None of this is new; it is the same structure Section 498A carried for four decades.
What “cruelty” means under Section 86
Section 86 defines cruelty in two limbs, and a complaint typically has to fit one of them:
- Wilful conduct of a kind likely to drive the woman to commit suicide, or to cause grave injury or danger to her life, limb or health — whether that danger is physical or mental.
- Harassment of the woman with a view to coercing her, or anyone related to her, to meet an unlawful demand for property or valuable security, or harassment on account of her or her relatives’ failure to meet such a demand.
Both limbs require more than an unhappy marriage or an isolated argument. Courts have consistently read this as a pattern-of-conduct threshold — sustained humiliation, persistent threats, or harassment tied to a specific demand, rather than ordinary friction that most marriages go through. That reading carries over unchanged from decades of Section 498A cases, because Section 86’s wording tracks the old Explanation almost exactly.
Arrest is not automatic — the Section 35(3) BNSS notice
A common fear on either side of one of these complaints is that an FIR under Section 85 means immediate arrest. It does not, necessarily. Because the maximum punishment under Section 85 is three years — within the seven-year threshold that Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) sets — the police are required to consider issuing a written notice directing the person to appear and cooperate with the investigation, rather than arresting on the strength of the FIR alone. This provision carries forward the same safeguard that Section 41A of the old Code of Criminal Procedure provided, and that the Supreme Court has repeatedly held is not optional where it applies. It does not mean arrest can never happen — the police can still arrest where genuinely necessary — but a notice, not a police party at the door, is meant to be the default.
If arrest is a real risk: anticipatory bail
Where the facts suggest arrest is likely despite the notice safeguard, the person named in the complaint does not have to wait for it to happen. An anticipatory bail application under Section 482 BNSS — the successor to Section 438 of the old Code — can be moved before the Sessions Court in advance, seeking a direction that the person be released on bail if arrested. Preparing this application well, with the specific facts of the complaint addressed rather than a generic denial, matters more than filing it quickly after the fact.
Settlement does not automatically close the case
A significant share of Section 85 matters resolve because the parties settle — often as part of a wider matrimonial resolution, including divorce by mutual consent. What a settlement does not do on its own is end the criminal case: cruelty under Section 85 is generally treated as non-compoundable, so the parties cannot simply tell the trial court they have settled and have the complaint withdrawn. The route that actually closes the case is a petition to the High Court to quash the FIR under its inherent powers, now Section 528 BNSS (previously Section 482 of the old Code, a numbering coincidence with the new anticipatory bail section that is worth being careful about — they are not the same provision). That quashing petition is heard by the High Court, not by the Magistrate trying the case at the district court level, though the settlement itself and the supporting record are prepared well before it is filed.
What this means if you are on either side of a complaint
For a woman considering a complaint: the offence and its protections have not weakened — Section 85 still carries the same punishment and the same cognizable, non-bailable character Section 498A always had, and it can be pursued alongside, not instead of, a civil application under the Protection of Women from Domestic Violence Act for protection, residence or monetary relief.
For a person named in a complaint: the Section 35(3) BNSS notice safeguard is real, but it is not a guarantee against arrest, and it does not excuse ignoring the complaint. The two immediate priorities are the same as they were before 1 July 2024, only under new section numbers — assess whether anticipatory bail should be moved before any arrest, and preserve contemporaneous evidence early, because specific dated material is worth far more later than an account reconstructed after the fact.
Our advocates handle Section 85 BNS matters and Domestic Violence Act applications, on both sides, before the Magistrate at Tis Hazari. Call 99115 44811 to discuss a specific complaint or notice.
This article explains the general change from the former Section 498A IPC to Sections 85–86 BNS and does not constitute legal advice on any particular complaint. No advocate can guarantee the outcome of a criminal case or a bail application; every matter turns on its own facts and evidence.