Introduction
On July 1, 2024, India’s criminal justice system underwent a massive reboot, trading the century old IPC for the Bharatiya Nyaya Sanhita (BNS). At the heart of this change are Sections 85 and 86, which replace the infamous Section 498A to tackle the persistent plague of matrimonial cruelty. But as we move into this new era, the “legal smokescreen” defense is being put to the test. This article examines how Indian courts are tearing down the excuses of void marriages and live-in relationship to ensure that perpetrators of cruelty can no longer hide behind legal loopholes to escape the reach of justice. The legislature has done more than renumbering a law it has redefined the boundaries of judicial protection. Yet, as the legal landscape shifts, a critical question remains, can the technicalities of a ‘void’ marriage or the informalities of a ‘live-in’ relationship serve as a shield for the abuser? Through an analysis of landmark precedents and the spirit of the BNS, this article explores the “No-Shield Principle” that ensures justice is no longer a prisoner of technical legal definitions.
The BNS under section 85 defines the punishment for cruelty where in it states that- “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”
In the BNS under section 86, the definition of “cruelty” has been separated into its own section to provide absolute clarity.
(a)any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.[2]
Significant change from IPC to BNS
Under the old IPC 498A[3], the definition of cruelty was an “Explanation” at the end of the section. In the BNS, the separation into Section 86 makes it a standalone legal definition. This allows courts to apply the definition of “cruelty” more broadly to other related offenses if necessary.
Summary of Punishment
• Imprisonment: Up to 3 years.[4]
• Fine: Mandatory (at the discretion of the Court).
• Nature: Cognizable (Police can arrest) and non-Bailable.
WHEATHER 498A IPC WOULD BE APPLICABLE TO LIVE IN RELATIONSHIP OR IN SECOND MARRIAGE?
I. (IN LIVE IN RELATIONSHIP) No, Section 498A of the IPC does not apply to live-in relationships.
Since a live-in partner is not legally a “husband” in the eyes of the IPC, the Supreme Court has held that a woman cannot file a complaint under Section 498A against a live-in partner.
• Alternative: A woman in a live-in relationship is not left without remedy. She can seek protection and maintenance under the Protection of Women from Domestic Violence Act, 2005[5](DV Act), which recognizes “relationships in the nature of marriage.”
• Section 85: This is the punitive section. It states that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine.
• Section 86: This section specifically defines “Cruelty.”
II. (IN SECOND MARRIAGE WHEN 1st WIFE IS ALIVE)
If a man marries a second time without legally divorcing his first wife, the second marriage is void (invalid) under section 11[6]. Technically, if the marriage is void, the man is not legally a “husband,” and therefore 498A shouldn’t apply.
“De Facto” Marriage Twist: Many High Courts and the Supreme Court have ruled that if a man goes through the ceremonies of marriage and holds himself out as a husband, he cannot use the illegality of his second marriage as a shield to escape a 498A charge.
CASES PERTAINING FROM Supreme Court & High Court IN LIVE IN RELATIONSHIP & SECOND MARRIAGE WHILE FIRST IS NOT DISSOLVED
In REEMA AGGARWAL VS ANUPAM The Bench of Hon’ble Justice Doraiswamy Raju & Arijit Pasayat stated in the judgement that-
“The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money.”
“Instruction has to come into play in a case of this nature. The absence of a definition of “husband” to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as husband is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.”
The Supreme Court’s judgment in Reema Aggarwal v. Anupam (2004)[7] is a landmark because it shut the door on men trying to use the “invalidity” of a marriage to escape criminal charges for cruelty and dowry harassment.
In KOPPISETTI SUBBARAO V. STATE OF ANDHRA PRADESH The Bench of Justice Arijit Pasayat & Justice Asok Kumar Ganguly stated in the judgement that-
“NO SHIELD PRINCIPLE”
“The person who has gone through the form of marriage with a woman and lives with her as husband and wife cannot take the plea that he is not the husband because the marriage was null and void.”
The Court emphasized that the status of the “husband” for the purpose of Section 498A is determined by the conduct and the ceremony, not just the legal validity of the marriage under personal laws.
In Koppisetti Subbarao v. State of Andhra Pradesh (2009)[8], the Supreme Court of India reinforced the principle that a man cannot escape criminal liability for cruelty by simply claiming that his marriage to the victim was not legally valid.
This case is a significant victory for women in “void” or “de facto” marriages.
In DR. LOKESH B.H. AND OTHERS V. STATE OF KARNATAKA The Bench of Hon’ble Mr. Justice Suraj Govindaraj STAED in his judgement that-
13.8. “If the Petitioner’s submission were to be accepted, it would produce a manifestly unjust and anomalous result namely, that a man who deceives a woman into a void marriage by concealing his earlier marriage could then escape criminal liability under Section 498A merely because the relationship lacks legal validity. Such a position would not only defeat the purpose of the enactment but also encourage fraud and exploitation of women under the guise of invalid marital relationships. The courts cannot countenance such a perverse consequence.”
13.9. “The term “husband” in Section 498A must be given a purposive and expansive construction, and the protection afforded by the provision cannot be denied merely on the technical ground of a void marriage. Where a man induces a woman to believe that she is lawfully married to him, and thereafter subjects her to cruelty, such a man cannot be permitted to evade criminal responsibility on the plea that no valid marriage existed in law.”
In the case of Dr. Lokesh B.H. and Others v. State of Karnataka[9], decided on November 18, 2025, the Karnataka High Court delivered a powerful ruling that a man cannot use the technicality of a void marriage or a live-in relationship to escape the rigors of Section 498A (Cruelty).
Justice Suraj Govindaraj, presiding over the case, emphasized that the protection of women’s dignity and safety must outweigh technical legal definitions.
In SAVITRI PANDEY v. PREM CHANDRA PANDEY The Bench of Hon’ble Justice R.P. Sethi AND Y.K. Sabharwal Stated In para 6 of the judgement that-
6.“Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party.”
The court held that “cruelty” is a course of conduct that causes such mental pain and suffering as to make it impossible for the party to live with the other. Desertion, when coupled with an intent to never return, falls squarely into this category.
In Savitri Pandey v. Prem Chandra Pandey[10] the Supreme Court provided a definitive interpretation of “Mental Cruelty” and “Desertion” under the personal law. The Court emphasized that marriage is a social and spiritual union, and its dissolution requires meeting rigorous legal standards rather than just proving that a couple is unhappy or living apart.
Conclusion
The judicial journey from Reema Aggarwal in 2004 to the recent landmark in Dr. Lokesh B.H. 2025 reveals a consistent and evolving “No Shield Principle.” The courts have sent a clear message that legal loopholes cannot be used as tools of exploitation. While the validity of a marriage remains a civil question under the Hindu Marriage Act, criminal liability for cruelty is rooted in the conduct of the parties and the status they hold out to society. As the law moves forward under Sections 85 and 86 of the BNS, the “De Facto Marriage Twist” ensures that husbands and their relatives cannot hide behind the smokescreen of a void marriage to escape the consequences of dowry harassment or mental torture. In the eyes of the modern Indian judiciary, the protection of a woman’s dignity and life is paramount, ensuring that justice is not sacrificed at the altar of “hair splitting legalistic niceties.”
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[1] 3rd year BA.LLB. student at Asian Law College, Noida
[2] Bharatiya Nyaya Sanhita, 2023
[3] Indian Penal Code, 1860
[4] Bharatiya Nyaya Sanhita, 2023
[5] Domestic violence act, 2005
[6] Hindu marriage act, 1955
[7] (2004) 3 SCC 199
[8] (2009) 12 SCC 331
[9] 2025:KHC:41834
[10] (2002) 2 SCC 73