Anticipatory bail after a matrimonial cruelty complaint: section 85, notice and quashing

A complaint of cruelty against a husband and his relatives under section 85 of the Bharatiya Nyaya Sanhita, 2023 (the offence that section 498A of the Indian Penal Code, 1860 used to define) is cognizable on the information of the woman or her relatives, is non-bailable, and carries up to three years' imprisonment. The accused can therefore apply for anticipatory bail under section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (section 438 of the Code of Criminal Procedure, 1973) to the Court of Session or the High Court, while arrest is separately limited by the notice of appearance under section 35 of the same Sanhita (section 41A of the Code). The bail conditions, mediation, quashing under section 528 after a settlement, and the position of relatives living abroad turn on the statutory text and on decisions of the Supreme Court of India.

What does section 85 make an offence?

Section 85 punishes a husband, or a relative of the husband, who subjects a woman to cruelty, with up to three years' imprisonment and a fine. Section 86 defines cruelty in two limbs: wilful conduct likely to drive the woman to suicide or to cause grave injury or danger to her life, limb or health; and harassment to coerce her or a person related to her to meet an unlawful demand for property or valuable security, or for failing to meet it.

The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 classifies the offence as non-bailable and triable by a Magistrate of the first class. It is cognizable only if the information reaches the officer in charge of a police station from the woman, a person related to her by blood, marriage or adoption, or, failing a relative, a public servant of a class the State Government notifies. Section 359, which lists the offences the parties may compound, with or without the court's permission, does not include section 85. The parties cannot compound it under the central text.

The criminal defence and matrimonial and family pages outline the stages; this note takes up the stretch after the complaint.

When may the police arrest, and what is the notice of appearance?

Section 35(1)(b) allows arrest without a warrant for a cognizable offence punishable with up to seven years only if the officer has reason to believe the person committed it and is satisfied that arrest is necessary for one of five stated purposes, among them proper investigation, preventing tampering with evidence or witnesses, and ensuring the person's presence in court. The officer must record reasons, and also where choosing not to arrest.

Where arrest is not required, section 35(3) obliges the officer to issue a notice directing the person to appear, and section 35(4) makes compliance a duty. Under section 35(5), a person who complies, and continues to comply, is not to be arrested unless the officer records reasons.

In Arnesh Kumar v. State of Bihar ((2014) 8 SCC 273, 2 July 2014), a case under section 498A of the Penal Code and section 4 of the Dowry Prohibition Act, 1961, the Supreme Court held that no arrest is to be made only because the offence is cognizable and non-bailable, and that the Magistrate at remand must be satisfied on the officer's recorded facts and reasons. It directed every State to instruct police not to arrest automatically when a section 498A case is registered, to forward any decision not to arrest to the Magistrate, and to serve the notice of appearance, the last two within two weeks of the institution of the case, extendable by the Superintendent of Police for reasons recorded in writing. Failure exposes the officer to departmental action and contempt. The directions reach every offence punishable with up to seven years, and speak of sections 41 and 41A of the Code of 1973, which section 35 now carries.

Section 35(7) adds that no arrest is to be made without the prior permission of an officer not below the rank of Deputy Superintendent of Police, for an offence punishable with imprisonment of less than three years, where the person is infirm or above sixty years of age.

What does anticipatory bail under section 482 require?

Section 482(1) lets a person who has reason to believe that he may be arrested on an accusation of a non-bailable offence apply to the High Court or the Court of Session for a direction that he be released on bail if arrested. Under section 482(3) he is released if arrested and prepared to give bail. Section 482(4) excludes only arrests for the offences in sections 65 and 70(2) of the Bharatiya Nyaya Sanhita, 2023.

In Sushila Aggarwal v. State (NCT of Delhi) ((2020) 5 SCC 1, 29 January 2020) a Constitution Bench held that the protection should not ordinarily be limited to a fixed period and may continue until the end of the trial, with the usual bail conditions, and further conditions, including a time limit, where an offence has peculiar features such as seriousness or gravity. It also said the apprehension of arrest must rest on concrete facts, that an application may be moved before a first information report (FIR) is filed if the apprehension is reasonable, and that the court may issue notice to the Public Prosecutor.

What conditions do courts impose?

Section 482(2) names four conditions: that the person make himself available for interrogation by a police officer as and when required; that he not, directly or indirectly, make any inducement, threat or promise to a person acquainted with the facts so as to dissuade that person from disclosing them; that he not leave India without the previous permission of the court; and any other condition that section 480(3) permits. The third bears on a husband or relative settled abroad. Section 480(3) makes some conditions compulsory for offences punishable with seven years or more and for offences under Chapters VI, VII and XVII of the Bharatiya Nyaya Sanhita; section 85, in Chapter V with a three-year maximum, is outside it. Section 482(2) otherwise leaves the choice to the court in the light of the facts of the case.

How do mediation and family welfare enter?

In K. Srinivas Rao v. D.A. Deepa (Civil Appeal No. 1794 of 2013, 22 February 2013), a husband's appeal in a divorce case in which the wife's complaint had led to his conviction under section 498A, the Supreme Court said that matrimonial disputes, particularly those relating to custody of a child and maintenance, are pre-eminently fit for mediation, that they should be referred to mediation centres when first taken up by the Family Court or the court of first instance, and that about 10 to 15 per cent of matrimonial disputes are settled in the Supreme Court through mediation centres. It said a criminal court dealing with a section 498A complaint should, where there are elements of settlement, direct the parties to explore mediation, and that on a settlement the parties can approach the High Court to have the complaint quashed.

When can the High Court quash under section 528 after a settlement?

Section 528 saves the High Court's inherent power to prevent abuse of the process of any court or otherwise to secure the ends of justice. A settlement over section 85 works only through that power. In K. Srinivas Rao v. D.A. Deepa the Supreme Court recorded that B.S. Joshi v. State of Haryana ((2003) 4 SCC 675) held a section 498A complaint may be quashed by the High Court under its inherent power if the parties settle, and that Gian Singh v. State of Punjab ((2012) 10 SCC 303) allowed quashing of offences arising out of matrimony, though not compoundable, where the parties have settled. It added that the High Court will quash only if, after considering all the circumstances, it finds the settlement equitable and genuine. In Manoj Sharma v. State (Criminal Appeal No. 1619 of 2008, 16 October 2008), a concurring opinion cautioned that B.S. Joshi does not allow any criminal case to be quashed merely because of a compromise, since a crime is an offence against society.

Quashing is not confined to settlements. In Kailashben Mahendrabhai Patel v. State of Maharashtra (2024 INSC 737, Criminal Appeal No. 4003 of 2024, 25 September 2024) the Court quashed a section 498A first information report and charge sheet against a stepmother-in-law and others. It found the allegations vague, the dispute rooted in a property suit between the husband and his father, and a later domestic violence complaint on similar allegations dismissed after trial.

What is the position of relatives, including those abroad?

Arnesh Kumar recorded the Court's concern that bed-ridden grandparents and sisters living abroad for decades were being arrested under section 498A. Kailashben quotes Kahkashan Kausar v. State of Bihar ((2022) 6 SCC 599), where general and omnibus allegations against in-laws, with no specific role attributed to each, were held not to warrant prosecution. The test is the particulars alleged against each person.

Three provisions bear on a relative outside India. Section 1(5)(a) of the Bharatiya Nyaya Sanhita, 2023 applies the Sanhita to an offence by an Indian citizen anywhere. Section 208 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lets a citizen be dealt with for an offence outside India as if committed where he is found or the offence is registered in India, but its proviso bars inquiry or trial without the previous sanction of the Central Government. Section 530 allows summons and the recording of evidence in electronic mode.

What does an illustrative timeline look like?

An illustration. The persons, places and dates are hypothetical. A complaint is made against a husband in Bengaluru, his mother in Mysuru and his sister, an Indian citizen who lives in Toronto. The first information report is registered on 1 March 2027 under section 85.

Step                                              Date
FIR registered                                    1 March 2027
Anticipatory bail application (Court of Session)  4 March 2027
Interim direction under section 482               9 March 2027
Notice under section 35(3) served                 10 March 2027
Outer date for notice and no-arrest decision      15 March 2027
Final order, no fixed period                      23 March 2027
Settlement signed after mediation                 11 June 2027
Petition under section 528 filed                  18 June 2027

The two weeks in the Arnesh Kumar directions run from the institution of the case, so 1 March 2027 gives 15 March 2027. If the husband and his mother comply with the notice, section 35(5) bars arrest unless the officer records reasons. The sister's position turns on sections 1(5)(a), 208 and 482(2) and on the particulars alleged against her.

What remains unsettled?

Section 35(7) does not on its words reach section 85, whose maximum is three years; no decision of the Supreme Court has yet read it otherwise.

Whether the two-week periods in Arnesh Kumar, framed for the Code of 1973, apply unchanged under the 2023 Sanhitas, which carry the old text but not the Court's directions.

How the sanction requirement in the proviso to section 208 applies to a relative abroad where part of the alleged conduct occurred in India.

Where the line falls between a settlement the High Court accepts and one it refuses because the conduct alleged is grave.

When the peculiar features that Sushila Aggarwal recognises justify a time limit on anticipatory bail in a cruelty complaint.