In India, it is illegal to perform a second marriage during the existence of a first marriage and the relationship arising from this has no legitimacy. Although the law has a clear view on the idea of second marriage, it is still a common practice in Indian society. As a result of the above-mentioned difference between the law and the social practice, second wives are provided little protection under the Indian law. A person cannot remarry while the first marriage is in existence and the second marriage in such case, will be considered illegal and illegitimate as per the law.
Although marriage laws in India do not permit the practice of second marriage, it is very common in our country and, thereby, the second wives do not have many rights in law. The Hindu Marriage Act provides that a person can remarry only when neither of them has a spouse living at the time of their marriage or if they are divorced.
While considering the rights of a wife with respect to her husband’s property, the Hindu Adoption and Maintenance Act, 1956, and the Hindu Succession Act, 1956, must be mentioned. Provisions of these Acts give the wife absolute rights over her husband’s property in case of the demise of the latter and the same cannot be diminished by her remarriage or adoption. But there are several nuances involved if the husband remarries.
One of the conditions that is given under the Hindu Marriage Act, 1955 (HMA) for a valid marriage is that a person cannot remarry if they have a spouse living at the time of their marriage. Whereas, under the old marriage law, there were restrictions only for the woman from marrying for the second time while her first husband was still alive There were no such restrictions for men until some States introduced the principle of monogamy amongst Hindus and gave provisions for prevention of bigamy. After 1955, with the help of the aforesaid laws and Section 11 of the Hindu Marriage Act, second marriages are declared null and void ab initio. On this behalf, under the Hindu Marriage Act , it is necessary for a marriage to take place as per the customs and rites, and for a legally wedded spouse to not subsist their second marriage.
The societal stigma attached with being a second wife, and the absence of any lawful status to her marriage along with the enormous pain of cheating that she bears in that marriage are undeniably and exceptionally sad for her. Although she is not recognized as a legal wife, because of the legal interpretation of the existing marriage laws, she might have a chance to receive maintenance from her husband.. This shows the lack of unambiguous laws that can protect her interest in claiming her rights which are mostly dependent on the choice of the Judges.
Even under Criminal Law, it is extremely hard to prove bigamous marriage, as the marriage has to be genuinely performed to prove the said crime. Usually, these loopholes are used by men to defend themselves.
The problem of a second wife
The notion of second marriages explain the pain of the person, i.e, the second wife who actually suffers the most. Because of the illegitimacy of her marriage and the ruthless labels given to her by the society, it becomes very stressful for her to cope.
The property rights of the second wife
In order to determine what privileges are given to the second wife, there is a need to examine the legitimacy of the second marriage. The Hindu Marriage Act, 1955 prohibits polygamy and Section 5 of the Act states, “at the time of marriage, none of the parties should have a living spouse”. Thus, if this condition is not met, the second wife does not have the right to claim any share over her husband’s property. Whereas, if the husband gets married after the death of his first wife or after getting divorced from his wife, it would be a legal wedding and the second wife will have the same rights as the first wife in the property. This will be valid for both types of properties, husband’s self-acquired or ancestral property.
Class I Legal Heirs to the dead person’s estates are defined under the Hindu Succession Act when there is an absence of will. They are :
The son, daughter, widow, mother, son of a deceased son, daughter of deceased son, widow of deceased son, son of a deceased daughter, daughter of deceased daughter, son of deceased son of deceased son, daughter of deceased son of a deceased son and widow of deceased son of a deceased son
Thus, it is evident that the children would have equal rights over the deceased patriarch’s immovable property (both self-acquired as well as inherited), irrespective of whether they are children of the first wife or the second. Provisions related to the property rights of first and second wives and their children are highly shaded and necessitate invoking justice in the various Acts to authenticate a reasonable verdict.
Circumstances under which second marriages occur are:
Husband remarries without divorce
When a person remarries without legally divorcing his first wife who is still alive, the first wife and her children can claim rights over the property from the marriage. After the demise of the head of the family, the property would get equally allocated among the first wife, her children, as well as the children of the second wife and in some exceptional cases, the second wife even though there exists ambiguity surrounding the privileges of the second wife in this situation.
Marriage after the death of the first wife
When the husband marries again after the demise of the first wife, the children from the first marriage and those from the second marriage as well as the second wife would get equal shares in the property of the patriarch, after his demise.
Marriage after divorce with the first wife
In case, the husband marries another woman after divorcing his first wife; apart from the first wife, the children of the first wife, the second wife and the descendants of the second wife would all get equal portions in the paterfamilias’s property.
When the property is jointly titled
When the property is jointly titled by the husband and his first wife, it becomes marital property. Even after the second marriage, the marital property in case of death of the husband will remain under the possession of the first wife and the receivers nominated by her. Though the children from the second marriage can claim their share in their father’s property, referring to the Hindu Succession Act, the second wife can claim her share in the property only after the demise of the first wife.
This shows that the rights of the second wife rely on the legal prominence of the marriage. The Hindu Succession Act clearly defines the privileges that are provided to the children of the second wife under the category of Class I Heirs.
Proof of Second Marriage
It is necessary to prove that a second marriage has taken place and for that purpose, it is very essential that the second marriage is completed in accordance with the essential rites, customs, and rituals followed. Just a statement that a person has married someone for the second time is not sufficient proof of marriage. According to the Hindu religion, the performance of Saptapadi and Homa are important to be performed to prove a marriage. Under Section 494, a second marriage can be declared invalid only if it has been performed with all the practices and ceremonies.
Maintenance of the second wife
Maintenance under the Code of Criminal Procedure
In cases of divorce, the right of maintenance is provided under Section 125 of the CrPC which says that if a man has treated a particular individual as his wife, the same can be used as evidence of their marriage. In case of Mallika and Anr v. P Kulandi, where a person misrepresented his first wife’s death, his second wife was provided maintenance by him.
Maintenance under HMA
The HMA provides for the right to maintenance under Section 24. Although, this section does not give any privilege to the second wife with regards to maintenance,in a series of cases, the bench has provided a broad explanation to this provision and nowadays, under Section 24, even a woman who is the second partner has a right to allowance. Similarly, under Section 25, the provision of permanent maintenance has been explained broadly by the Court of law to protect the privileges given to the second wife. Once the marriage is dissolved, the second wife will get financial support from her husband.
In Rajesh Bai v. Shantabai, a girl’s wedding was annulled because of the existence of an existing marriage of her husband. The Hon’ble Bombay High Court stated that Shantabai was entitled to get allowance, under the Hindu Adoption and Maintenance Act, 1956.
Maintenance under the Hindu Adoption and Maintenance Act, 1956
The Act provides for the second wife to have a right to maintenance from her spouse even if the woman has deserted her husband and gets to know that her partner is living with another spouse. Though, the phrase ‘living with another wife’ has been inferred diversely by distinct High Courts, in a recent judgement, the Court said that this line didn’t mean that the husband should be staying with his first partner. The existence of the first wife without any separation is an adequate ground.
What happens when two wives claim the share?
In the case of Vidyadhari & Ors v. Sukhrana Bai & Ors, Sheetaldeen (husband) was deserted by his first wife Sukhrana Bai and consequently, married Vidyadhari (second wife) with whom he had four children. The husband made his second wife his nominee and all benefits that came out of his employment were reserved for her and she could also claim a succession certificate for her four children. In spite of that, when both the wives filed for succession certificates after Sheetaldeen’s demise, the Trial Court favoured Vidyadhari, and the Madhya Pradesh High Court was in the favour of Sukhrana Bai.
On a further appeal, it was decided that the first wife would be given a one-fifth share from Sheetaldeen’s property. The four children too got their legitimate share but the second wife had to forgo her share because, in the eyes of the law, the first wife was the legitimate wife who was not divorced before Sheetaldeen remarried. Therefore, in this case, the right of the first wife sustained.
The second wife has to suffer a lot due to the social disgrace that is attached to a ‘second marriage’. Absence of legal recognition of the second marriage is a lot of pain to the second wife. Even though there exists a Judicial Precedent for the maintenance of the second wife, the absence of clear laws regarding her claim for maintenance depends on the decision of the Court. The absence of such provisions provides ambiguity in the Indian Law and these laws are easily misused by the husbands to defend themselves. Therefore, there is a dire need to make strict and clear provisions for second wives, so as to provide them with relief.
- Vidyadhari & Ors vs Sukhrana Bai & Ors available at: https://www.casemine.com/, 575 (The Supreme Court January 22, 2008).
- Does A Second Wife Has Right Of Maintenance In India available at:https://blog.ipleaders.in . (n.d.).
- Property rights of second wife and her children available at:https://www.99acres.com . (n.d.).
- Rajeshbai And Ors. vs Shantabai available at: https://indiankanoon.org, 327 (Bombay High Court april 28, 1981).
- Rights of Second Wife – With reference to Bigamous Marriage in India, available at: http://www.legalservicesindia.com
- What happens when a husband remarries without getting a divorce from his first wife?
- What will happen if two wives claim a share in property together?
- Which section provides for the maintenance of a wife in the HMA?
- What are the problems faced by the second wife?
- Will the second wife get any share in the property if the death of the first wife is misrepresented by her husband?
 Mallika and Anr v. P Kulandi (1999), 2000 CriLJ 142, I (2001) DMC 354
 Rajesh Bai v. Shantabai(1981),AIR 1982 Bom 231, (1981) 83 BOMLR 327
 Vidyadhari & Ors v. Sukhrana Bai & Ors(2008),SC 575