498A / Section 85 BNS Cases Against NRI Husbands
An NRI husband facing a matrimonial criminal case in India may have to deal with an FIR, investigation, arrest risk, court proceedings, a Look Out Circular (LOC), or restrictions on travel. Since July 2024, cruelty by a husband or his relatives is dealt with under Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced Section 498A of the Indian Penal Code.
The appropriate remedy depends on the FIR, allegations, stage of investigation and orders already passed by the court. An NRI living abroad may, depending on the circumstances, seek anticipatory bail, quashing of the FIR, exemption from personal appearance, or other appropriate relief before the competent Indian court.
Contents
Understanding Section 85 BNS / 498A Cases
Section 85 BNS concerns cruelty by a husband or a relative of the husband towards a woman. The provision is the corresponding provision to Section 498A IPC, which applied to offences committed before the BNS came into force.
For an NRI husband living outside India, the immediate issue is not simply whether the allegations are true or false. It is important to determine:
whether an FIR has actually been registered;
which offences have been included in the FIR;
whether investigation is pending or a charge-sheet has been filed;
whether any summons or warrants have been issued;
whether proceedings are pending before a Magistrate or High Court;
whether any LOC or other travel-related restraint exists; and
whether the court has directed the accused to appear personally.
A matrimonial dispute can also involve other proceedings, such as maintenance, domestic violence proceedings, divorce proceedings or allegations concerning property and dowry articles. Each proceeding has to be examined separately.
Legal Remedies Available to NRI Husbands
There is no single remedy applicable to every 498A or Section 85 BNS case. Depending on the facts, an NRI accused may consider the following:
Anticipatory Bail
Where there is a genuine apprehension of arrest in connection with a non-bailable offence, an application for anticipatory bail may be made under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) before the competent Court of Session or High Court.
The court may impose conditions, including requirements concerning investigation and availability for interrogation. Therefore, an NRI should not assume that residence abroad automatically removes the need to comply with conditions imposed by the court.
Quashing of FIR
In appropriate cases, an accused may approach the High Court seeking quashing of criminal proceedings under Section 528 BNSS.
Quashing is not automatic merely because the accused describes the FIR as false. The High Court examines the allegations, supporting material and the legal principles governing exercise of its inherent jurisdiction.
Exemption from Personal Appearance
An NRI accused may, where legally permissible, seek exemption from personal attendance before the trial court.
Whether personal appearance can be dispensed with depends on the stage of the case, the nature of the proceedings and the order of the competent court. A Power of Attorney does not automatically authorise another person to substitute the accused in every criminal proceeding.
Challenge to a Look Out Circular
Where an LOC has been issued, the legal position should first be verified from the available records and the circumstances in which it was issued.
Depending on the facts and the authority involved, appropriate proceedings may be considered before the competent court. An LOC should not be treated as synonymous with a conviction or as an automatic “travel ban”; its actual effect must be examined from the relevant records and directions.
Can an NRI Husband Handle the Case from Abroad?
In many cases, an NRI can take substantial legal steps while remaining abroad. However, it would be incorrect to state that every criminal case can be conducted entirely through a Power of Attorney or that the accused will never need to appear in India.
The court may require personal attendance at a particular stage. In an appropriate case, an application for exemption or permission for appearance through permitted electronic means may be considered.
Before travelling to India, an NRI accused should therefore establish the current procedural position of the case rather than relying only on information received from family members or intermediaries.
Important Documents to Collect
An NRI husband should, as far as possible, obtain copies of:
FIR and complaint;
notice or communication received from the police;
charge-sheet, if filed;
court summons or warrants;
latest order sheets;
bail orders, if any;
details of any LOC or other travel-related order;
matrimonial or civil proceedings connected with the dispute;
relevant correspondence between the parties; and
documents showing residence, employment or other relevant circumstances abroad.
The complete record is important because the appropriate remedy can change substantially depending on whether the matter is at the complaint, FIR, investigation, charge-sheet, summons or trial stage.
Frequently Asked Questions
Can an NRI husband seek anticipatory bail in a Section 85 BNS case?
Yes. Where the statutory requirements are satisfied and there is an apprehension of arrest for a non-bailable offence, anticipatory bail may be sought under Section 482 BNSS before the competent Court of Session or High Court. The court decides the application on its facts and may impose conditions.
Can an NRI husband seek quashing of a 498A / Section 85 BNS FIR?
In an appropriate case, a petition for quashing may be filed before the competent High Court under Section 528 BNSS. Whether the FIR should be quashed depends on the allegations, evidence and applicable legal principles.
Can I deal with a 498A case while living abroad?
Many procedural and legal steps can be undertaken through Indian counsel while an accused remains abroad. However, personal attendance may be required unless the competent court grants exemption or permits another legally recognised mode of participation.
Can a Power of Attorney represent me in a criminal case?
A Power of Attorney can authorise a representative for specified acts, but it does not automatically allow the representative to replace an accused in every criminal proceeding. The requirements of the particular court and proceeding must be followed.
Can I travel to India if an FIR under Section 85 BNS has been registered?
An FIR by itself does not answer whether you will be arrested on arrival. Before travelling, check the current FIR, investigation status, bail position, warrants and any LOC or other order affecting travel. If there is an apprehension of arrest, appropriate legal protection should be considered before travel.
Does an LOC mean that I have been declared guilty?
No. An LOC is not a finding of guilt. Its effect and legal basis depend on the circumstances in which it was issued and the directions applicable to the person concerned.
What if my wife has also filed maintenance or domestic violence proceedings?
Those proceedings are legally distinct from the criminal case under Section 85 BNS. The documents and orders in each proceeding should be examined separately, although the factual background may overlap.
Does living abroad prevent an Indian court from proceeding against me?
No. Residence outside India does not by itself prevent Indian criminal proceedings from continuing. The court may issue appropriate directions concerning appearance, bail and other procedural requirements.Section 85 BNS (equivalent to Section 498A IPC, effective July 2024) makes cruelty to a woman by her husband or his relatives a cognisable, non-bailable offence. A false or malicious complaint can trigger arrest on arrival in India, a Look Out Circular, and passport seizure before any trial. Under BNSS 2023, an NRI husband can seek protection from arrest through anticipatory bail (Section 482) and apply to quash a false FIR (Section 528) before the Punjab & Haryana High Court — in many cases without travelling to India. — Adv. Jaspreet Singh Benipal