Entering into a second matrimony while your one is still married to one’s first spouse is illegal under the law governing Hindu marriages. However, this does not amount to stripping the second wives’ of a right in their husband’s property, if the second marriage is legally valid.  This basically means that the rights of a second wife in Indian on the property of her husband are primarily determined by two factor:

 

1. The validity of the marriage
2. The applicability of the religious  laws

When is a second marriage legally valid?

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 performed after the death of the first wife.

Divorce with first wife

The second marriage took place after the husband had taken a divorce form the first wife.

No knowledge of 1st 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.

In either of these situations, the second marriage will be legal. 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.

See also: Coparcener meaning in HUF context

 

Validity of second marriage under Hindu Marriage Act

According to the Hindu Marriage Act, 1955, a second marriage has legal status only when “at the time of marriage, none of the parties should have a living spouse”.  Among many conditions that Section 5 of The Hindu Marriage Act, 1955, sets to provide a marriage legal sanctity is that ‘neither party has a spouse living at the time of the marriage’.

In October 2023, the Delhi High Court reiterated the point 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 has ruled, adding that the consent of the parties does not confer legality to such a marriage. After a divorce, even if it is decreed without the participation of one spouse, it is legal to remarry, the HC has ruled in a different case in April 2023.

If a husband marries his second wife while the first marriage still exists, the Hindu law terms the first marriage being ‘subsistence’ at the time of the second marriage. It means that the husband remains married to the first wife even after the second marriage when he married his second wife.

According to Section 5 of the Hindu Marriage Act, 1955, one’s marriage to another person is void if s/he is still married to somebody else. This means, the second marriage between the second wife and the husband is void, in this case.

Also read all about probate meaning, uses and how to apply for it

Second marriage valid even if divorce plea is pending: SC

The second marriage will be valid even if it is done during the pendency of an appeal against divorce with the first wife, the Supreme Court ruled in 2018.

Through its order the top court set aside an order by the Delhi High Court which had ruled that any marriage solemnised by a party during the pendency of the appeal wherein the operation of the decree of divorce was stayed would be in contravention of Section 5(1) of the Hindu Marriages Act.

The Hindu Marriages Act prescribes that a second marriage will only be lawful if it is done after getting a divorce with the first spouse.  Section 5(1) of the Hindu Marriages Act says that a marriage may be solemnized between any two Hindus if neither party has a spouse living at the time of the marriage.

“Consequences of treating a marriage void are so serious and far reaching and are likely to affect innocent persons such as children born during the period anterior to the date of the decree annulling the marriage that it has always been considered not safe to treat a marriage void unless the law so enacts or the inference of a marriage being treated void is either inescapable or irresistible,” the SC said.

 

Second wife: Laws applicable for property rights in India The Hindu Succession Act, 1956/ 2005 This succession law is applicable to Hindus, Sikhs, Jains, and Buddhists, where a man has died without a will. The Indian Succession Act, 1925 This 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, 1937 This succession law is applicable to Muslims, where a man dies without leaving a will.

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?

Second wife: Her various legal positions

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.

See also: Who is an heir and what is inheritance?

In case 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.

In case of 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 they 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 recent 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 

The second wife, whose marriage with her husband is considered void in the eyes of law, cannot enjoy the right to maintenance from her husband under Section 125 of the Code of Criminal Procedure, 1974. “The children of the second wife, whose marriage is not valid, can claim maintenance till they are minors and unable to maintain themselves. They can also claim maintenance from their father even after attaining majority (i.e., after 18 years of age) if there is any physical or mental abnormality and they are unable to maintain themselves. This rule is, however, not applicable to the married daughter of the second wife,” explains Prabhansu Mishra, a Lucknow-based lawyer, who specialises in property law.

While giving its verdicts in certain cases, the courts have said that the second wife, whose marriage with her husband is void, can claim maintenance if she is able to prove that she had no knowledge of her husband’s previous marriage.

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

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.

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.

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: Sons Daughters Widow Mother Son of a predeceased son Daughter of a predeceased son Son of a predeceased daughter Daughter of a predeceased daughter Widow of a predeceased son Son of a predeceased son of a predeceased son Daughter of a predeceased son of a predeceased son Widow of a predeceased son of a predeceased son Son of a predeceased daughter of a predeceased daughter Daughter of a deceased daughter of a predeceased daughter Daughter of a predeceased son of a predeceased daughter Daughter of a predeceased daughter of predeceased son

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: Father Son’s daughter’s son (or great grandson) Son’s daughter’s daughter (or great granddaughter) Brother Sister Daughter’s son’s son Daughter’s son’s daughter Daughter’ daughter’s son Daughter’s daughter ‘s daughter Brother’s son Sister’s son Brother’s daughter Sister’s daughter Father’s father Father’s mother Father’s widow Brother’s widow Father’s brother Father’s sister Mother’s father Mother’s mother Mother’s brother Mother’s sister

See also: Know all about property transfer after death of owner

Latest news

Property bought in housewife’s name is joint family asset: HC

Property bought by a husband in the name of a housewife with no independent source of income will be categorized as the family’s joint property, the Allahabad High Court (HC) has ruled. Such property, prima facie, becomes the property of the joint Hindu family, the HC said in an order dated February 15, 2024.

Giving its order in a case where one Saurabh Gupta had filed a civil suit, asking for declaration of co-ownership of his deceased father’s property, Justice Arun Kumar Singh Deshwal said that it was common for husbands to buy property in the name of their wives.

In his appeal, Gupta contended that despite being officially registered in the name of his mother, the property was jointly shared because it was bought by his father using his own funds.

“This court under Section 114 of the Indian Evidence Act may presume the existence of fact that the property purchased by a Hindu husband in the name of his spouse, who is a homemaker and does not have an independent source of income, will be the property of family, because in common course of natural event Hindu husband purchases a property in the name of his wife, who is homemaker and does not have any source of income for the benefit of family,” the court observed.

Unless proved that the property was purchased with the income earned by the wife, the property will be deemed to have been purchased by the husband using his own income, the high court added.

Husband can’t deny maintenance to second wife under Section 125 of CrPC: HC

A second wife is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC), the Bombay High Court (HC) has ruled. Her husband can’t deny her claim if the fault of keeping her in the dark about the first marriage lies with him, a single-judge bench of Justice Rajesh S Patil has ruled.

“We are dealing with a situation where the marriage between the parties has been proved. However, the petitioner was already married. But he duped the respondent by suppressing the factum of alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong,” the high court said in its order dated December 14, 2023.

Married woman can claim residential right at her parents’ house: Madras HC

Even though a married woman lives at her husband’s home, it is wrong to presume that she has given up her residential status at her parents’ home, the Madras High Court (HC) has ruled.

“A married woman though ordinarily lives at her husband’s place, cannot be presumed to have disowned her residential rights at her parents’ house on account of her marriage. For the purpose of getting a separate ration card after her marriage, her name would have got deleted from her parents’ ration card and included in her husband’s ration card. With that alone, it cannot be said that a married woman had severed her ties with her parents’ place and her residential status in respect of her parent’s house has come to a closure once and for all. The rules of marriage do not impose any such condition on a woman,” a single-judge Bench of Justice RN Manjula said in its order dated September 30, 2023.

Read full report here.

Wife fee to sell her property without husband’s permission: Calcutta HC

A wife selling property registered in her name without the consent of her husband does not amount to cruelty, the Calcutta High Court (HC) has ruled. While dismissing an appeal by the husband in the MS versus JNS case, a Division Bench of Justice Harish Tandon and Justice Prasenjit Biswas also emphasised that a wife was not her husband’s property and did not require his approval for everything that she did. “If the wife decided to sell the property standing in her name without seeking approval or permission from the husband-respondent, it shall not constitute the cruelty,” the high court said while hearing an appeal against a trial court order which had granted divorce to the husband on the basis of cruelty and desertion.

Children from invalid marriage have right in ancestral property: SC

Children born put of a void or a voidable marriage are considered legitimate in the eyes of the law, and they have a right in theirs parents’ ancestral property under the Hindu succession law, the Supreme Court said on September 1, 2023. A three-judge Bench of the top court also added that a child under Section 16(1) and Section 16(2) of Hindu Marriage Act (HMA) would be a legitimate kin under the Hindu Succession Act (HSA). Such children, however, will have no right in the property of any other person in the family, the top court clarified.

Divorced Hindu daughters can’t claim maintenance: HC 

A divorced daughter can’t claim maintenance under the Hindu Adoption and Maintenance Act (HAMA), the Delhi High Court (HC) has said while deliver its order the Malini Chaudhari versus Ranjit Chaudhari & Another. Unlike a widowed daughter and an unmarried daughter, a divorced daughter is not covered under the definition of dependents under the HAMA, the HC added in its order dated September 13, 2023. The Hindu Adoption and Maintenance Act sets out the legal procedure for adoption of children by Hindus. It elaborates on the legal obligations after the adoption, including maintenance of children, wife and in-laws.

Husband must provide for first wife despite second marriage: Calcutta HC

August 3, 2023: A husband who has married for the second time under his personal law is still duty bound to provide for the first wife, the Calcutta High Court (HC) has ruled. While delivering its order on July 31, 2023, the quashed a sessions court order which had reduced the monthly maintenance for the first wife from Rs 6,000 to Rs 4,000 “A man who can marry for the second time (permitted under personal law), is duty bound to maintain his first wife of 9 years. A woman who has diligently, sincerely, and lovingly put in so many years of her life in a relationship with her husband deserves to be looked after and cared for by him, as long as she needs or requires the same,” the HC said.

Read full coverage here.

First wife can seek declaration of husband’s second marriage as void: HC

August 3, 203: A first wife’s application under Section 11 of The Hindu Success Act, 1955, seeking declaration of her husband’s second marriage as void is maintainable, the Allahabad High Court has ruled. While allowing the first wife to pursue legal recourse to nullify the second marriage on the grounds of its illegality, the HC dismissed an appeal by the second wife. “If the first wife is deprived of seeking a remedy under Section 11 of the Hindu Marriage Act, it would defeat the very purpose and intent of the Act. The protection offered to legally wedded wives under sections 5, 11, and 12 of the Hindu Marriage Act would become insignificant in such a scenario,” the two-judge Bench of Justices Saumitra Dayal Singh and Vinod Diwakar said.

Read full coverage here.

Homemaker wife has equal share in husband’s self-acquired property: HC

 June 25, 2023: Homemaker wives have an equal share in a property purchased by their husbands since they contribute to the acquisition by taking care of the family, the Madras High Court (HC) has ruled. The observation by the high court was made while giving its verdict in the Kannaian Naidu and others versus Kamsala Ammal and others case.

“No law prevents the judges from recognising the contributions made by a wife facilitating her husband to purchase the property. In my view, if the acquisition of assets is made by joint contribution (directly or indirectly) of both the spouses for the welfare of the family, certainly, both are entitled to equal share,” the HC said in the order dated June 21, 2023.

Read full coverage here.

Wife can’t claim maintenance from 2^nd husband if 1^st marriage sustains: HC

May 30, 2023: A woman’s second marriage is not valid if her divorce from her first husband is not decreed by a court, the Madhya Pradesh High Court has rules. The second wife would thus not quality as the legally wedded wife of the new husband, and thus will not be entitled to under Section 125 of the CrPC, the court added.  Section 125 of the CrPC, 1973, talks about maintenance of wives, children and parents.

Read full coverage here. 

Govt employee’s second wife not entitled to family pension: Madhya Pradesh HC

The second wife of a government employee is not entitled to family pension if the marriage was solemnised without getting a divorce from the first marriage, the Madhya Pradesh High Court (HC) has ruled in the Batasiya Maravi versus the state of Madhya Pradesh case.

The court also conceded the fact that under state government rules, no government official in Madhya Pradesh is entitled to marry for the second time without first getting an official permission even if his personal law grants him the permission to do so.

Read full coverage here.

No law against wife seeking maintenance under different sections: HC

There is no provision of law which bars a wife to seek compensation under two different statutes, the Madhya Pradesh High Court (HC) has ruled. While delivering its judgment, the HC cited the Supreme Court order passed in the Rajnesh versus Neha case. If a wife is getting maintenance under one provision of law, a court should keep in account the maintenance the wife is receiving while ascertaining the maintenance under another section, the HC added.

 

Family property received by Hindu woman through partition deed is not inheritance: HC

An ancestral property received by a Hindu woman through a registered partition deed will not qualify cannot be termed inheritance under the Hindu Succession Act, the Karnataka High Court has ruled. Consequently, such a property will not go back to the heirs of the woman’s father upon her demise, the HC added.

Read full coverage here. 

Daughters don’t lose right in parent’s property because they got dowry: HC

The right of daughters in their paternal property does not get extinguished because a dowry was given at the time of their wedding, the Goa Bench of the Bombay High Court has ruled.

“Even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father’s demise,” the Bench said while giving its order in case where a brother has made a transfer deed without getting consent of his sister.

Divorced Muslim woman entitled to maintenance even after Iddat: HC

A divorced Muslim woman in India is entitles to claim maintenance under Section 125 of the CrPC (Code of Criminal Procedure) for her entire life if she is not disqualified to do by entering into a second marriage, the Allahabad High Court (HC) has ruled. Section 125 of the CrPC establishes the rules on granting of maintenance to wives, children and parents.

Read full coverage here.

 

Children born from a widow’s 1^st marriage can inherit step-dad’s property: HC

Children born out a widow’s first marriage have a right in her property the woman receives from her second husband, the Gujarat High Court held in June 2022. This remains true even if the children were born out of wedlock or through an illicit relation, the high court added.

Remarriage not a ground to question precious settlement: HC

A husband cannot question a previously agreed settlement with his former wife after the decree of divorce citing his remarriage as a ground, the Karnataka High Court has ruled.

“Once the issue is settled before the Court and after the Court recording settlement of parties, merely because the respondent remarries, the petitioner cannot be seen to call in question the settlement itself on whatsoever ground except, it being a fraud,” the HC said.

In the case, a couple got married in 2006 which was annulled in 2015 after they arrived at a settlement. Under the pact, the husband was to pay Rs 30 lakh as permanent alimony in full and final settlement for the annulment.

Property bought in homemaker wife’s name is joint family asset: Allahabad HC

Property bought by a husband in the name of a housewife with no independent source of income will be categorized as the family’s joint property, the Allahabad High Court (HC) has ruled. Such property, prima facie, becomes the property of the joint Hindu family, the HC said in an order dated February 15, 2024.

“This court under Section 114 of the Indian Evidence Act may presume the existence of fact that the property purchased by a Hindu husband in the name of his spouse, who is a homemaker and does not have an independent source of income, will be the property of family, because in common course of natural event Hindu husband purchases a property in the name of his wife, who is homemaker and does not have any source of income for the benefit of family,” the court observed.

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 [email protected]