Introduction
The purpose of Section 85 BNS (previously Section 498A IPC) which has been in force for a long period has been to protect the wife, being validly married to her husband, against any cruelty, either physical or mental, on the part of the husband or the relatives of the husband. For long, the term ‘husband’ was narrowly construed to be one with a registered solemnized marriage certificate.
However, jurisprudence in India has made a significant turn. Now because of liberal interpretations, legal protection available under the cover of Section 85 BNS is also extended to live-in relationships where the conditions to qualify for “relation in the nature of marriage” are fulfilled.
Historical Context and the Statutory Dilemma
When the provision against cruelty was added to the law, the purpose was to cover cases of dowry deaths and harassment by the husband and/or his relatives leading to physical/mental abuse within the four walls of the marital house. The section definition of cruelty includes:
Endangerment: willfull conduct which is likely to drive a woman to commit suicide or to cause such grave injury or danger to her life, limb or health (physical or mental).
Unlawful coercion: harasment with an intent to cause any person, taking pleasure or for the purpose of coercing her or any person, related to her to fulfill any unlawful demand for money or valuable security (dowry).
In as much as Sec 85 BNS is a penal section with the possibility of imprisonment up to three years, all defense attorneys consistently argued for strict literal interpretation, and hence unless a legal marriage exists, there can be no “husband” or “wife”, and therefore no scope under 85 BNS for its enforcement.
For years this interpretation left many a women out from the reach of the criminal law remedy if after years of living together with a partner, shared finances, managed household and subjected to severe domestic violence, she had no documentation proving that a legal marriage had taken place.
The Constitutional Turning Point: Dr. Lokesh B.H. v. State of Karnataka (2026)
In a landmark ruling in August 2026, a Supreme Court bench comprising Justices Sanjay Karol and N. Kotiswar Singh ruled in Dr. Lokesh B.H. & Ors. V. State of Karnataka & Anr. that Section 85 BNS is applicable to live-in relationships which satisfy the definition of “a relationship in the nature of marriage”.
Pillars of the Ruling:
- Purposive approach to interpretation, rather than Literalistic approach: The Supreme Court refuted contentions that penal provisions have to be interpreted by any yardstick with absolute literalism. The Court held that law is a living organism and is to cope with changing social sensibilities. Where male has assumed the role of husband with care, then he is not entitled to inflict cruelty, escape criminal accountability by the excuse that no formal marriage ceremony took place between him and the female partner.
- Constitutional Mandate of Equality (Article 14): When female is in relation in the nature of a marriage for a long period, her being protected against cruelty, being outside its pale, without a registeredmarriage ceremony will be denial of equal justice, that is article 14 of the constitution (right to equality). Damage caused to a male and female living in relation in the nature of a marriage would not differentiate between injury sustained by the former over a formal marriage or otherwise.
Establishing the threshold . - Intention to Marry: The Court put forward a much-needed parameter to keep criminal law from the onslaught of arbitrary overreach by laying a stipulation: an intention to marry between the two must be construed as a fundamental aspect of the relationship.
Categorizing Relationships: When Does Protection Apply?
Clearly, the Supreme Court clarified that not all casual cohabitation gives rise to protection under Section 85 BNS. The courts in India draw distinctions based on several tests to determine if they fall under ‘dating setups or casual cohabitation’.
1. Casual Cohabitation or Dating Setups :
Casual cohabitation doesn’t receive criminal protection under Section 85 BNS of BNS. The courts differentiate between such situations when the couple has separate financial dealings, there are no long-term mutual agreements or intentions to enter into a marital life.
Also, it must not be a secretive or private affair between two individuals.
If there’s domestic violence in such setups, then the women have remedy under the civil law on domestic violence.
2. Relationship “In the Nature of Marriage”:
In order to become entitled for remedies against cruelty under Section 85 of BNS, the relationship should meet certain criteria defined in landmark judgements which interalia includes :-
i) Living Together & Joint Household :
The long period of shared domestic arrangements would be significant factor such as sharing the similar place of residence for a long time.
ii) Common Financial & Resource:
The financial relationships between the couple such as sharing joint bank accounts, paying lease agreements, sharing of assets like household goods are strong indicators of long term planned together.
iii) Holding out to the world:
The couple should be held by themselves and to the world, family, friend as husband and wife.
iv) intention of marriage:
It should also have the intention of marriage at some point of time and should have decided to live together.
Complementary Legal Protections Across Indian Law
Section 85 BNS provides for the criminal prosecution of cruelty in a live-in relationship, yet Indian legislation also provides a civil alternative and alternative mechanisms for maintenance as follows:
a. The Protection of Women from Domestic Violence Act (DV Act) of 2005:
A “relationship in the nature of marriage” is addressed by Section 2(f) of the DV Act. Under this Civil statute, live-in female partners may be entitled to:
- Orders of protection (prohibiting the aggressor from entering the victims place of work or residence).
- Orders of residence (where it allows women to stay in the matrimonial house even where the husband is not the owner).
- Monetary relief (which can be in the form of medical expenses, lost wages and maintenance during the proceedings).
b. Right to Maintenance (Section 144 BNSS):
The Apex Court has held in the cases like Chanmuniya Vs. Virendra Kumar Singh Kushwaha(2011) that a long cohabitation creates a presumptuous relationship of husband and wife. When the woman is deserted or subjected to cruelty by the man in a presumptuous marriage and is compelled to resort to vagrancy and destitution and if she makes a prayer for a monthly maintenance and a meager monthly maintenance should be awarded to her under section 144 of Indian Civil Procedure Code.
Procedural Safeguards and Misuse Controls
Section 85 BNS prescribes cognizable and non-bailable offences, and the judiciary has provided procedural restraints that accommodate both the victim and protection against the possible misuse of law, by-
- Mandatory Preliminary Enquiry:The Supreme Court ruled out policemen arresting without preliminary enquiry in cases of live-in relationships under section 85BNS.
- Strict compliance of arrest guidelines under Arnesh Kumar guidelines: Automatically none is liable for arrest, and these rules for arrest apply to live-in partners and her relatives too. All arrest must strictly be complied with conditions laid under Arnesh Kumar v. State of Bihar (2014).
- Limited scope of expansion: “These observations relating to the expansion are limited to section 85 BNS only”. Such observation did not entitle live-in partners to acquire the same rights of civil succession, heirship or property share as that of a legally married wife, to whom such rights are available under Personal Laws.
Conclusion
Section 85 of BNS provides domestic protection to women in live-in-relationships in India and reflects significant progress towards developing a gender-sensitive jurisprudence. Breaking through strict formalism, the apex court guaranteed that those guilty of domestic cruelty could not use the fact of marriage not being legally registered in their defense. Nevertheless, criminal protection will not flow spontaneously. In order to attract the protection under Section 85 of BNS, the complainant has to establish that the residence had the character of a stable, long term ‘relationship in the nature of marriage’ between consentient adults.
References
1. Dr. Lokesh B.H. & Ors. v. State of Karnataka & Anr. (2026): Extended Section 85 BNS criminal cruelty protection to eligible live-in relationships.
2. D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469: Established the multi-factor test defining a “relationship in the nature of marriage”.
3. Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755: Evaluated domestic violence remedies within non-formal domestic unions.
4. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273: Established mandatory safeguards against arbitrary arrest in cruelty cases.
5. Statutory Provisions: Section 85, Bharatiya Nyaya Sanhita (BNS), 2023; Protection of Women from Domestic Violence Act, 2005; Section 144, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
