Navigating a Divorce Case While a Section 85 BNS Case is Pending

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Adv Sudhir Rao
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Navigating a Divorce Case While a Section 85 BNS Case is Pending

If you are stuck in such a situation, here is what to do.

Mr. Sameer, a resident of Nagpur, finds himself in a complex legal battle. His wife, Mrs. Anjali, has filed for divorce in the Family Court, citing cruelty as the ground under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Concurrently, a criminal case under Section 85 of the Bharatiya Nyaya Sanhita (BNS), which pertains to cruelty by a husband or his relatives, is also pending against Sameer and his family.

Mrs. Anjali has proposed a settlement. She suggests that if Mr. Sameer submits a “no objection” memo in court for the divorce to be granted, she will withdraw the criminal case under Section 85 BNS after the divorce decree is issued. She has also offered an alternative: if he is uncomfortable with the ground of cruelty, he can agree to the divorce on the ground of desertion instead. Mr. Sameer is now in a dilemma, worried that agreeing to the divorce might be interpreted as an admission of guilt in the criminal proceedings.

Advice in such cases

Navigating parallel civil (divorce) and criminal (cruelty) cases is fraught with challenges. The proposal made by the wife, while seemingly a straightforward path to resolution, carries significant risks.

  • Giving a “no objection” memo to a divorce petition filed on grounds of cruelty can be detrimental. The opposing counsel in the criminal case could argue that by not contesting the allegation of cruelty in the civil court, you have implicitly admitted to it. This could weaken your defence in the Section 85 BNS case.
  • The suggestion to change the ground to “desertion” is a strategically better option if a settlement is being considered, as it does not carry the same stigma or implication of fault as cruelty. However, any agreement must be handled with extreme caution.
  • A verbal promise to withdraw the criminal case after the divorce is not legally enforceable. Criminal cases, especially those like Section 85 BNS, are considered offences against the state. The wife cannot simply “withdraw” the case at her discretion once the charge sheet is filed. The process typically requires filing a quashing petition before the High Court, based on a formal, written, and notarized settlement agreement.

Applicable Sections of Law

Understanding the legal framework is crucial in such situations. The primary laws involved are:

  • The Hindu Marriage Act, 1955:
    • Section 13(1)(ia): Grants divorce on the ground of cruelty, which includes both mental and physical cruelty.
    • Section 13(1)(ib): Grants divorce on the ground of desertion, where one spouse has abandoned the other for a continuous period of not less than two years immediately preceding the presentation of the petition.
  • Bharatiya Nyaya Sanhita, 2023 (BNS):
    • Section 85: Deals with the offence of subjecting a woman to cruelty by her husband or a relative of her husband. This section has replaced the earlier Section 498A of the IPC.
  • Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This code governs the procedure for the investigation and trial of criminal offences, including those under Section 85 BNS.

If you are the complainant

If you are the husband against whom the divorce and criminal cases have been filed, you must proceed with caution.

  • Do Not Concede without Legal Advice: Never agree to file a “no objection” or any other memo without a thorough discussion of its consequences with your lawyer.
  • Formalize Any Settlement: If you decide to settle, ensure that all terms are documented in a comprehensive Memorandum of Understanding (MoU) or Settlement Agreement. This agreement should clearly state the obligations of both parties, including the process for quashing the criminal FIR.
  • Simultaneous Actions: The best approach is to have the divorce by mutual consent and the quashing of the FIR happen simultaneously or as part of a single, court-monitored process. Do not agree to a divorce first with a mere promise of criminal case withdrawal later.
  • Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Navigating a Divorce Case While a Section 85 BNS Case is Pending

If you are the victim

If you are the wife who has filed these cases, it is important to understand the legal landscape.

  • Separate Proceedings: Remember that the divorce and the criminal case are two distinct legal proceedings with different standards of proof. A divorce decree does not automatically lead to a conviction or acquittal in the criminal case.
  • Enforceability of Agreements: If you genuinely wish to settle both matters, ensure the settlement agreement is comprehensive and legally sound. A poorly drafted agreement may not be enforceable, leaving you in a difficult position.
  • Legal Procedure for Withdrawal: Understand that withdrawing a criminal case is not a simple matter. It requires a specific legal procedure, usually involving the High Court, and is not guaranteed.
  • Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

The police’s role is primarily confined to the criminal case under Section 85 BNS. Upon receiving a complaint, they are mandated to register an FIR and conduct an investigation. This involves collecting evidence, recording statements of the victim, accused, and witnesses. After the investigation, they file a final report (charge sheet or closure report) in the Magistrate’s court. The police have no direct role in the divorce proceedings in the Family Court. However, the evidence and statements collected by them for the criminal case can sometimes be relevant in the civil matter.

FAQs people normally have


  • Will agreeing to divorce on cruelty grounds prove I am guilty in the criminal case?

    It won’t automatically prove guilt, as the standard of proof in criminal cases (“beyond a reasonable doubt”) is much higher than in civil cases (“preponderance of probabilities”). However, it can be used as a piece of corroborative evidence against you and can certainly weaken your defence.



  • Can my wife withdraw the Section 85 BNS case on her own?

    No. Once an FIR is registered and the case is under investigation or trial, it becomes a matter between the accused and the State. The wife (informant) cannot withdraw it unilaterally. The case can only be “quashed” by the High Court under its inherent powers (Section 482 CrPC, with its corresponding section in the new BNSS), typically when the parties have reached a genuine settlement.



  • Is divorce by mutual consent a better option?

    Yes. If both parties agree, converting the contested divorce into a divorce by mutual consent (under Section 13B of the Hindu Marriage Act) is the most amicable and safest route. The settlement agreement for this can include a clause for the withdrawal/quashing of all pending criminal cases.


Navigating a Divorce Case While a Section 85 BNS Case is Pending

What evidence is required?

For the Divorce Case (Cruelty), evidence may include witness testimony, emails, text messages, photos of injuries, or medical reports proving physical or mental harassment.

For the Section 85 BNS Case, the prosecution relies on the initial complaint (FIR), statements of the victim and her family, and any evidence of harassment or dowry demands. The defence can present evidence to counter these claims, such as call records, proof of amicable communication, or alibis.

How long will the investigation take?

The criminal investigation under the BNSS is expected to be completed in a time-bound manner, but delays are common. The trial can take several years. Similarly, a contested divorce case can drag on for years in the Family Court, depending on the number of witnesses, the complexity of the issues, and the court’s schedule. A mutual consent divorce, however, can be obtained in a much shorter period, typically within 6 to 18 months from the filing of the first motion.

Advocate Sudhir Rao, Supreme Court of India

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