The provision
Section 85 of the Bharatiya Nyaya Sanhita, 2023, which replaced Section 498A of the Indian Penal Code, makes cruelty by a husband or his relatives towards a wife a cognizable, non-bailable offence, punishable with imprisonment of up to three years. It was enacted to address domestic cruelty and harassment connected with dowry, and it remains the principal provision under which such complaints are registered.
Because it is cognizable, the police can register an FIR and investigate without a magistrate's order. Because complaints frequently name several relatives, the question of when arrest is justified has come before the courts repeatedly.
Arnesh Kumar: arrest is not automatic
In Arnesh Kumar v. State of Bihar (2014), the Supreme Court held that for offences punishable with up to seven years' imprisonment, which includes this one, the police must not arrest merely because an FIR has been registered. An officer must be satisfied that arrest is actually necessary, for reasons the law lists, such as preventing further offences, securing evidence, or preventing the person from absconding, and must record those reasons in writing.
Where arrest is not necessary, the officer is to issue a notice of appearance instead. That is now Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, the successor to Section 41A of the CrPC.
The magistrate's role comes after an arrest, not before it. When an arrested person is produced, the magistrate must examine the officer's recorded reasons and may only authorise further detention if satisfied they justify it. The Court directed that officers who arrest without recording reasons, and magistrates who authorise detention without examining them, may face departmental or contempt proceedings. There is no requirement of a magistrate's sanction before an arrest is made; the safeguard is scrutiny afterwards.
Police must record specific reasons before arresting in a case like this, and a magistrate must check those reasons before allowing detention to continue.
Complaints that name everyone
A separate line of cases addresses what happens when a complaint names relatives, often ones living elsewhere, without saying what each of them is supposed to have done.
In Preeti Gupta v. State of Jharkhand (2010), Geeta Mehrotra v. State of Uttar Pradesh (2012) and Kahkashan Kausar v. State of Bihar (2022), the Supreme Court held that general and omnibus allegations, which attribute no specific act to a particular relative, do not justify putting that relative on trial. Where a complaint makes no specific allegation against a named relative, the High Court may quash the proceedings against that person under its inherent powers, now Section 528 of the BNSS, corresponding to the old Section 482.
This is a rule about specificity, not about whether the underlying complaint is true. A complaint can be entirely genuine against the husband and still fail to say anything concrete about his sister in another city. The cases hold that the second person should not be tried on the strength of the first.
Preliminary inquiry and counselling
In Lalita Kumari v. Government of Uttar Pradesh (2013), a Constitution Bench held that registration of an FIR is mandatory when information discloses a cognizable offence. It also held that in certain categories, including matrimonial disputes, the police may conduct a preliminary inquiry first, to be completed within a short, defined period, in order to establish whether a cognizable offence is disclosed at all. The inquiry is permitted, not required, and it cannot be used to avoid registering an FIR where the information plainly discloses an offence.
Some police forces route matrimonial complaints through a dedicated unit before registration. Delhi Police's Crime Against Women Cell, for instance, invites both parties to counselling and attempts settlement before an FIR is considered. This is a practice of particular forces, not a requirement of national law, and the details differ from state to state.
What this means for a published FIR
An FIR under Section 85 that names several people records that a complaint named them. It does not mean each of them was arrested, will be charged, or will stand trial. The safeguards above operate after registration, and a published FIR shows only the moment before any of them have applied.