RIGHT TO PROPERTY OF SECOND WIFE

AND CHILDREN

Introduction

When we speak about second wife, the first thing which comes in our minds
the legality attached with second marriage.The various personal laws have
different rules regarding this.Starting with Hindu law we will first learn about
the legality of second marriage according to hindu law. According to The Hindu
Marriage Act,1955, section 5, a marriage is said to be solemnised between two
hindus (i)if at the time of marriage neither party has a spouse living at the time
of the marriage, so if a hindu male re marries, even if his first wife is alive and
they are not divorced, in such a case the second marriage will not be considered
as valid.However we will first learn about the right to property of second wife
and then we will go through the rights of children born out of second marriage.

RIGHT TO PROPERTY AND MAINTENANCE OF SECOND WIFE

UNDER HINDU LAW

As said before the legality attached to the second marriage is an important part
for deciding where the marriage is valid or not.Section 5 of hindu marriage act
helps us to clarify that a marriage is said to be solemnised only if there is no
spouse living at the time of marriage, hence we will go through to the property
rights of second wife in the following cases:-

1)Second wife’s right to property if the second marriage takes place after the
death of the first wife-The second wife and her children can assert their
property rights as the Class-1 legal heirs of the husband because this second
marriage is considered to be sacrosanct in law.The second wife will now come
under Class I heir under Schedule of Hindu Succession Act.However,both the
first wife’s and the second wife’s children will share ownership of the property
guided by hindu succession act.

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2)Second wife’s right to property if the second marriage takes place after
divorce with the first wife-The second marriage is legal in this instance as well.
Since there is no spouse living at the time of marriage the second marriage in
this case is vaid. As a result, it gives the second wife ownership rights to her
husband’s assets. Since the first wife was legally divorced, she will have no
claim to his or her former spouse’s possessions. Her kids, however, will
continue to be in Class 1 heirs and has complete rights to ancestral property.

3)Second wife’s right to property if the property is co-owned by the husband

and the first wife-The first wife will be able to assert her claim to her part of the
property because the husband and the first wife own it jointly. Regardless of
the legal status of the second marriage, the second wife cannot make a claim to
such properties. However, the second wife may lay a claim in such possessions
in the event of the death of the first wife.  

4)Second wife’s right to property if the husband is not divorced with the first
wife-If the second marriage occurs without the first wife receiving a divorce,
the second woman loses all rights to the property because her second marriage
to her husband is null and void according to Hindu Marriage Act.

Maintenance of second wife according to Hindu Adoption and Maintenance

Act,1956

According to Section 18 of Hindu Adoption and Maintenance Act,1956 a

hindu wife is authorised to be maintained by her husband during her
lifetime.Also according to section 125(1) of The Code of Criminal
Procedure,1973, if any person having sufficient means refuses to maintain his
wife who is unable to maintain herself, a magistrate after getting proof of such
refusal can order the person for making a monthly allowance, however this acts
also specifies that wife includes a woman who has obtained divorce and has not
remarried.In the case of Chanmuniya vs.Virendra Kumar Singh
Kushwaha , the court held that the term ‘wife’ present  in Section 125 of CrPC
should be provided with a vast interpretation.The Supreme Court cited the case
Dwarika Prasad Satpathy vs. Bidyut Prava Dixit ,in which it was
decided that the parties evidence should be used to assess whether or not the

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marriage is legitimate for the purposes of a summary procedure under Section
125 CrPC. In such proceedings, the standard of proof of marriage is less
stringent than it would be in a trial for the violation under Section 494 of the
IPC. The court may assume that the claimant and respondent are a married
couple if the claimant is successful in proving that they have cohabited as
husband and wife in proceedings under Section 125 of the Code.In this case,
the party contesting the marital status has the opportunity to refute the
assumption. It is not essential to further investigate whether the marriage
procedure was completed in accordance with Hindu traditions once it has been
acknowledged that it was followed. The petitioner deceived the respondent by
concealing the details of his earlier marriage, the court said, and the second
wife is entitled to maintenance under Section 125.The term of a lawful
marriage entitling a woman to maintenance should be drawn in cases where a
man and woman have lived together for an extended period of time despite not
having a valid marriage, and a woman in such a case should have the right to
maintenance under Section 125 of CrPC.When there is adequate proof to show
that she was not informed of her husband’s prior marriage and the second
wedding was conducted in conformity with the personal laws, a woman who is
the second wife is also eligible for support under Section 125. According to the
supreme court’s ruling on maintenance, a second wife is not normally entitled
to maintenance but is when she was not aware of her husband’s prior marriage
and qualifies for maintenance under section 125,The Code of Criminal
Procedure,1973.

Thus, the legal standing of a second wife’s marriage determines her

legal rights. The second wife has the same legal rights as the first
wife if the marriage is recognised as legal. In accordance with the
Hindu Succession Act, a second wife who marries her husband after
the first wife’s death or divorce has the same claim to her husband’s
property as the first wife.

PROPERTY RIGHTS OF SECOND WIFE UNDER MUSLIM LAW

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A Muslim man in India is permitted to have up to four wives at once, but a
Muslim woman is only permitted to have one husband. In India, despite the
Muslim Marriage Act, polygamy is still practised. Muslim men are permitted to
be married again without divorcing their previous wives. However, a Muslim
lady does not receive the same authorisation. A Muslim woman’s second
marriage will be deemed invalid if she enters into one while the original
marriage is still active. Since according to muslim personal law, second
marriage is valid even after having spouse at the time of marriage, therefore
same property rights are given to second wife as well. If there are children, the
wife will receive an eighth of his estate; if there are none, she will receive a
fourth. The portion may drop to one sixteenth if there are multiple wives. In
situations where there are no legal estate sharers, the wife may get a larger
inheritance through a will. A Muslim may leave one-third of his possessions to
someone else in a will, but not to an heir.

Now we will study about the property rights of children born out of second
marriage.

PROPERTY RIGHTS OF CHILDREN AND MAINTENANCE BORN

OUT OF SECOND MARRIAGE

Under Section 16 of Hindu marriage act,1955, children of void and annulled

voidable marriages are given the status of legitimacy under Section 16 of the
Hindu Marriage Act (HMA) of 1955.The children of void and annulled voidable
marriages are given the status of legality by Section 16 HMA, 1955. Prior to the
1976 change, a section 11 of the act nullity decree had to be granted in order for
a child of a void marriage to be considered legitimate. The children could not
be legitimised if no decree was acquired. Additionally, a regular civil court
other than the matrimonial court may rule that the marriage is void without
issuing a judgement of nullity in a collateral issue involving inheritance to the
property. In such circumstances, the kids could not acquire legal status. The
children of void marriages are now legitimate under sub-section (1) of section
16 regardless of whether a nullity decree has been issued.They are legitimate
even if the parties’ marriage is declared null and void for reasons other than a

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petition filed under the Act. Children of voidable marriages are considered
legitimate even after a declaration of nullity is issued, just as if the marriage
had been dissolved by a divorce decree rather than being annulled, according
to subsection (2) of this section. The children of void and annulled voidable
marriages are thereby granted the status of legitimacy under section 16.
Children from a second marriage are recognised as legitimate by Section 16 of
the Hindu Marriage Act, giving them the same claim to their father’s property
as the children of the first wife, whether the second marriage is legal or not.
They will be their father’s Class-I legal heirs and, in the case of his passing, will
receive their inheritance in accordance with the guidelines of the 1956 Hindu
Succession Act. 

The Supreme Court of India also holds the opinion that even if a second
marriage results in children, such children are still entitled to the father’s
property. 

The children of the second marriage, however, will have to split the family’s
property with the heirs of class I.In the event if the deceased leaves a will
indicating such an aim, they might end up becoming the sole owners of the
property he bought on his own, i.e self acquired property.All of the man’s legal
heirs would be entitled to the self-acquired property in the absence of a
will.Indian Supreme Court on REVANASIDDAPPA & ANOTHER
V.  MALLIKARJUN & OTHERS, briefly stated, Section 16(3) of the Hindu
Marriage Act, (which was modified after this landmark case)places no
restrictions on an illegitimate child’s property rights other than confining them
to their parents’ property. As a result, such children will have a claim to
anything that their parents acquire, whether it be personal property or
inherited property. 

Under Section 20 of Hindu Adoption and Maintenance Act,1956, a hindu is

bound to maintain his child whether he is legitimate or illegitimate, through
his lifetime, and a legitimate and illegitimate child can claim maintenance from
his father or mother as long as the child is minor.As said earlier, under
Section 125 of Code of Criminal Procedure,1973, any person who

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refuses to maintain his legitimate or illegitimate minor child, whether married
or not, unable to maintain himself, then the magistrate on getting proof of such
refusal can order that person to maintain his child.Thus the children born out
of second marriage can claim for maintenance from his father.

CONCLUSION

The Hindu Adoptions and Maintenance Act, 1956, and the Hindu Succession
Act, 1956, must be acknowledged when discussing the wife’s post-marriage
rights to the husband’s property. In the event of the demise of the husband, the
provisions of these Acts grant the wife entire rights over his property, which
cannot be decreased by her subsequent marriage or adoption. If the husband
marries again, there are various subtleties that come into play.When it comes
about second marriage, there are various complex things attached to this but
the laws under the said acts can help us get over the complex questions which
are attached with the  topic of second marriage.In ancient men practiced
polygamy and bigamy but in modern times such a marriage is not valid
specially under hindu law and this is the reason which leads to various
complications when it comes to property rights of second wife and children
born out of such marriage. However the acts helps us to clarify the question
arising in such a case.

SOURCES

3.https://www.casemine.com
4.HINDU ADOPTION AND MAINTENANCE ACT,1956
5.The Hindu Marriage Act,1955

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