The Karnataka High Court (HC) made a striking observation on Thursday, holding that the girlfriend of any husband cannot be prosecuted for subjecting his wife to cruelty under the Section 85 of the Bharatiya Nyaya Sanhita (BNS), noting that a paramour cannot be treated as a ‘relative’ of the husband under the existing provisions.

Justice M Nagaprassana of the HC made the aforementioned observations while quashing criminal proceedings against a woman, who had been accused of being involved with a married man and allegedly harassing as well as intimidating his wife. The court’s ruling was based on the legal framework of Section 85 of the BNS and a previous ruling made by the Supreme Court (SC) concerning the definition of a ‘relative.’

What does BNS Section 85 encompass?

Notably, the Section 85 of the BNS provides for punishment when a husband or any of his kin subjects a woman to cruelty. Under the offence, the convict can face imprisonment of up to three years and a fine. Meanwhile, Section 86 defines ‘cruelty’ for the purposes of Section 85, including certain wilful conduct and harassment linked to unlawful demands for property or valuable security.

The HC relied on the top court’s ruling in Dechamma IM @ Dechamma Koushik vs State of Karnataka, in which the apex court held that the girl of a married man cannot be construed as his kin.

The HC remarked, “In the light of the bedrock of the law elucidated by the Apex Court, if the facts obtained in the case at hand are observed, a paramour of the husband - accused No.1 cannot be termed as a relative of the husband.”

Woman approached HC after trial court proceedings

The woman had approached the Karnataka HC after a trial court took cognisance of a criminal case against her.

In the complaint, the woman alleged that she had committed offences including subjecting the wife to cruelty, assault or the use of criminal force, intentional insult and criminal intimidation under the BNS. She was also accused of receiving dowry under the Dowry Prohibition Act, 1961.

The HC examined the allegations and ruled thereafter that the offences alleged against the petitioner were not made out on the material placed before it. It consequently quashed the criminal proceedings initiated against her.

Court examines allegations of dowry-linked harassment

Furthermore, the HC noted that even under the earlier Section 498A of the Indian Penal Code (IPC), the material would have to show that the alleged ill-treatment was inflicted by the husband or a relative of the husband and was connected with the non-fulfilment of a dowry demand.

The HC bench asserted, “Taking the allegations at their face value in the FIR or even in the entire material placed in the charge-sheet, there was no averment or material indicating that the petitioner was involved in harassing the wife on account of non-fulfilment of a dowry demand.”

Therefore, the ruling centred on the statutory requirement that proceedings under Section 85 concern the husband or a kin of the husband, rather than a person who is merely alleged to be his paramour.