In ancient times, polygamy was recognised and acceptable among Hindus. But, in modern India, the Hindu Marriage Act, 1955 prohibits bigamy/polygamy and a wife has various rights if the marriage is valid under the Hindu Marriage Act.
Entering into a second matrimony while your still married and have your first spouse is illegal under the law governing Hindu Marriages. However, if the second marriage is done after divorcing the first wife and is valid in the eyes of the law, then the second wife’s children have property rights in the husband’s ancestral and other properties. To know more about the property rights of second wife one has to refer to the Hindu Adoptions and Maintenance Act of 1956 and the Hindu Succession Act of 1956.
This basically means that the rights of a second wife in Indian on the property of her husband are primarily determined by:
- The validity of the marriage
- The applicability of the religious laws
- Property acquired during second marriage
- Existing agreements
- Intestate succession in case of demise of husband who had a second wife.
When is a second marriage legally valid?
According to the section 5 of the Hindu Marriage Act, 1955, a second marriage has legal status only when ‘at the time of marriage, none of the parties has a living spouse’. For instance, in October 2023, the Delhi High Court reiterated that under the Hindu Marriage Act, a second marriage will not be valid if spouses of either partner are alive. A violation of this condition renders the second marriage void under Section 11 of the Act, the Delhi High Court ruled, adding that the consent of the parties does not confer legality to such a marriage.
Succession laws in India treat a second wife equal to the first one based on the legal status of the marriage. A second marriage will be legal in the following circumstances:
Demise of first wife
The second marriage was held after the death of the first wife. However, note that even in case of the second wife being there, if the man is having a child from first marriage, the second marriage doesn’t disqualify him from performing duties towards first child.
Can second wife claim property of first wife?
No, a second wife cannot claim the property of the first wife unless the second wife has legally inherited this property through a will or through succession laws.
Divorce with first wife
The second marriage took place after the husband had taken a divorce form the first wife.
No knowledge of first wife’s whereabouts for 7 years
The second marriage was solemnised seven years after the first wife left her husband and the husband has no idea about her whereabouts or living status.
As a result, the second wife and her children will have the same rights on the property of her husband/father as the first wife and her children. However, the property rights of the second wife would be next to negligible in case the marriage is void.
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If the second marriage is legal, the second wife and her children will have the same rights on the property of her husband/father as the first wife and her children. However, the property rights of the second wife would be next to negligible in case the marriage is void.
Also read all about probate meaning, uses and how to apply for it
Property rights of second wife in India
The Hindu Succession Act, 1956/ 2005This succession law is applicable to Hindus, Sikhs, Jains, and Buddhists, where a man has died without a will. The Indian Succession Act, 1925This law is applicable to Hindus where a man dies leaving behind a will (testamentary succession). This law also deals with the property rights of Christians. In case a Muslim man dies leaving a will, the Indian Succession Act, 1925, will be applicable too. The Muslim Personal Law (Shariat) Application Act, 1937This succession law is applicable to Muslims, where a man dies without leaving a will. |
Legal status of the second wife under other laws
Muslim Law
Polygamy for Muslims is allowed under personal law, wherein a man can have up to four wives at the same time. Hence, the second wife is legally recognised and is given her certain property rights.
Other religions
Under their respective marriage laws for Christians and Parsis, polygamy is not allowed. If a man marries for the second time while still being married to the first wife, the second marriage is considered void.
See also: What is a Muslim woman’s right to property?
Property rights of second wife
In a scenario where the matrimony has no legal sanction, the second wife will have no claim over her husband’s ancestral property. The same, however, does not hold true in case of self-acquired property of the husband. He would be free to leave it to anyone, including the second wife, through a will. However, in case he dies without leaving a will (known as intestate in legal parlance), his properties will be divided among his legal heirs, according to the succession laws applicable to him.
In case the second marriage takes place after his divorce with the first wife or after the demise of the first wife, the second marriage will have legal sanction and the second wife will have every right in her husband’s ancestral and self-acquired property (and fall under the Class-1 heirs of her husband).
See also: What is a legal heir certificate?
Various legal positions of the second wife
Various courts have taken different positions on the property rights of the second wife, on a case-to-case basis. We cite some circumstances here and how they impact the legal position of the second wife with respect to her property rights.
If the second marriage took place after the death of the husband’s first wife
As this second marriage has legal sanctity, the second wife and her children can claim their property rights in the capacity of the Class-1 legal heirs of the husband. The children of the first wife, as well as the second wife, will have equal rights in the property.
If the second wife married her husband after his divorce with the first wife
In this case too, the second marriage is valid. Hence, it grants the second wife the rights in her husband’s property. As the first wife has been divorced under the existing law, she will have no right in her former spouse’s property. However, her children will remain the Class-1 heirs of the man and can claim their rights in ancestral property.
Can second wife claim property of first wife?
No, a second wife cannot claim the property of the first wife unless the second wife has legally inherited this property through a will or through succession laws.
See also: Who is an heir and what is inheritance?
If the property is co-owned by the husband and the first wife
As the property is jointly held by the husband and the first wife, the latter will be able to stake claim on her share of the property. The second wife can stake no claim on such properties, irrespective of the legal status of the second marriage. However, in the event of the first wife’s demise, the second wife can stake claim in such properties.
If the second wife married her husband after his divorce with the first wife
The first wife can stake claim over the self-acquired property of her husband, which was purchased during the first marriage, even if the two decide to get divorced. If the property is registered under the names of the first wife and the husband, the court will decide the contribution made by each party and divide the asset accordingly at the time of divorce.
If the property is registered under the husband’s name and he is the sole borrower, the first wife cannot stake claim at the time of divorce under the Hindu Marriage Act, 1955. The fact that the property was bought after the marriage would not have any bearing on the subject. The second wife can stake claim over the said property.
Second marriage where there is no divorce with the first wife
In cases where Hindu succession law is applicable, if the second marriage takes place without the divorce with the first wife, the second wife cannot make any claim in the property as her second marriage with her husband is void.
Note that even though bigamy is allowed in Islam (men can have four legally wedded wives), Muslim men can also not go for a second marriage if they are not capable of fostering their first wife and children.
“If a Muslim man is not capable of fostering his wife and children then as per the above mandate of the Holy Quran, he cannot marry the other woman,” the Allahabad High Court said in a judgement.
Second wife’s right in her husband’s self-acquired property
The self-acquired property of a person is their own in their lifetime, and they are free to bequeath it to anybody after their demise through a Will in any manner they want. In their lifetime, too, they can gift this property to anyone they want like. This means, the second wife can claim a share in her husband’s self-acquired property if he has died without leaving a will and the property is going to divided keeping in view the laws applicable on specific religions.
If her late husband has bequeath his self-acquired to anyone else through a will, and the second wife find it out post his demise, she has no legal standing to claim a share in such a property. The option to challenge the Will on other grounds, however, is always open.
Second wife’s right to maintenance
Under Section 125 of the Code of Criminal Procedure, 1974, the second wife is not eligible to receive any maintenance from her marriage as it is considered null and void. However, the children of the second wife, whose marriage is not legally recognised are eligible to receive maintenance support as long as they are minors. They can also ask for financial support from their father even after they are major if they cannot provide for themselves because of some medical or mental condition that prevents them from working.
In some circumstances, the courts have mentioned that the second wife can claim for spousal support if she can prove that she was not aware of the husband’s first (previous) marriage when she got married to him. In case the husband refuses, the second wife can take him to court.
In such a scenario, the second wife can also drag her husband to a court, if he refuses to provide her maintenance. She will, however, have to prove that she was kept in the dark about his first marriage when the second marriage took place, adds Mishra.
However, different courts have dealt with this aspect differently. In 2021, the Nagpur Bench of the Mumbai High Court ruled that the second wife cannot be called his legally wedded wife even if she was kept in the dark about his first marriage.
“Even if it is assumed for the sake of argument that the appellant (second wife) had been kept in dark about the first marriage of the respondent (husband), on proof of the said fact, the contention of the appellant that she is legally wedded wife of the respondent cannot be accepted,” it said.
Property rights of the children from a second marriage
With respect to children of second marriage, the legal responsibilities of the biological parent will have an impact on the child’s property and support rights.
The children born out of a second marriage – whether valid or invalid – have the same right in their father’s property as the children of the first wife, as children from the second marriage are acknowledged to be legitimate under Section 16 of the Hindu Marriage Act. They will belong to the Class-I legal heirs of their father and in the event of his death, will inherit property according to the provisions of the Hindu Succession Act, 1956 unless specified in the will that will influence family asset distribution.
The Supreme Court of India is also of the view that children born out of a second marriage can claim the father’s property, even though the matrimonial tie might be illegal.
While the children born out of the second marriage will have to share the ancestral property with other Class-1 heirs, they might become sole owners of his self-acquired property in case he leaves a will expressing such an intent.
In case there is no will, the self-acquired property would be claimed by all the legal heirs of the deceased man.
What are the rights of second wife’s children from her previous marriage?
Even if the second marriage is valid under Hindu Marriage Act, the children of second wife from her previous marriage cannot inherit any property from their father from second marriage. The term stepson is not included in the term son that is used in the class of heirs in Hindu Succession Act. In this, son means only naturally born son or adopted son and not step son.
What are the rights of daughter of second wife in ancestral property?
A second wife’s daughter has the same rights as any other daughter in ancestral property. The rules are subject to personal laws that are applicable to the parties that are involved.
See also: Property rights of a daughter under Hindu Succession Act 2005
Who are Class-1 legal heirs? |
The property of a Hindu man, who dies without leaving a will (intestate) would be given first to his Class-1 heirs. Class-1 heirs of a person include:
|
Who are Class-2 heirs? |
The property of a deceased is divided among his Class-2 heirs in case no Class-1 heir is present to stake his/her claim. The Class-2 heirs of a person include his:
|
See also: Know all about property transfer after death of owner
What are the rights of children born out of second marriage?
Mentioned are rights of children born out of second marriage under the different religious laws.
Hindu Law
- If the second marriage is valid under Hindu Law, the children born will have equal right on the property as that of the children of first wife.
- If the marriage is not valid under Hindu law, the childen born can inherit their father’s property ( self- acquired and ancestral) but only that and not the joint ancestral property, as mentioned in Section 16 of the Hindu Marriage Act, such children have a right to inherit the property of their parents alone.
Parsi Law
- Section 3 (b) of the Parsi Marriage and Divorce Act, 1936 says that although a marriage be not valid, the child born shall be considered legitimate.
Christian Law
- Under the Christian Law, children born out of second marriage or annulled marriages will be treated as legitimate child and will have all right on the father’s property.
Muslim Law
- While the Muslim Law does not bind the father to maintain his illegitimate child, Section 125 of the Criminal Procedure Code, 1973, directs the father to pay for the child maintenance.
Joint property of husband and first wife
If there is a joint property between husband and first wife, the second wife has no rights on that property. If the first wife passes away, the second wife has legal rights on the property.
Tips for estate planning for blended families
Wills and trusts: Tailor made estate plans will help the needs of a blended family. This can prevent misunderstandings and property related disputes.
Updated beneficiary details: Regularly updating beneficiary details on financial instruments, on life insurance and retirement accounts etc.
Communication: Have a clear and open discussion with your family on the role of estate planning
Housing.com POV
There are too many legalities involved when it comes to property rights of second wife and her children. And this gets complicated if there are kids from the first marriage. In this context, its best to go for legal help who can guide through the intricacies.
FAQs
What are the legal rights of a second wife?
The legal rights of a second wife are determined by the legal status of her marriage. If the marriage is valid, the second wife enjoys the same legal rights as the first.
What are the rights of second wife in husband's property?
Under the Hindu Succession Act, the second wife has the same right in her husband’s property as the first if the marriage has taken place after a divorce with the first wife or the demise of the first wife.
Can second wife claim property of first wife?
No, a second wife cannot claim property that legally belongs to the first wife.
Is the second marriage while the first wife is alive legal for a Hindu?
The law does not give legal sanctity to the second marriage if the first spouse is alive or if the divorce between the former spouses has not been finalised at the time of the second marriage.
What are the property rights of the children of the second wife?
The children of the second wife have the same rights as the children of the first wife. All the children of a man fall into the Class-1 heir category and enjoy equal share in his ancestral property.
| Got any questions or point of view on our article? We would love to hear from you. Write to our Editor-in-Chief Jhumur Ghosh at jhumur.ghosh1@housing.com |
