Property rights of the second wife

 Property rights of the second wife

The Hindu Marriage Act, 1955, prohibits polygamy. Section 5 of the Hindu Marriage Act, 1955, specifies that at the time of marriage, none of the parties should have a living spouse. Therefore, if this condition is not met, the second wife does not have the right to claim any share in the property of the husband. Additionally:

If the second marriage is valid, i.e., the husband gets married after the demise of the first wife or after getting divorced from the first wife, then the second wife has the same rights as the first wife over the husband’s property. This is valid for both the husband’s self-acquired as well as ancestral property.

property rights of the second wife's children

The Hindu Succession Law defines the following members as Class I legal heirs to the deceased person’s estates, in case of the absence of a will, i.e., the owner’s intestate demise:

             -The son, daughter, widow, mother, son of a predeceased son, daughter of predeceased son, widow of predeceased son, son of a predeceased daughter, daughter of predeceased daughter, son of predeceased son of predeceased son, daughter of predeceased son of a predeceased son and widow of predeceased son of a predeceased son

Therefore, the children from the first marriage, as well as the second marriage, would have equal rights over the deceased patriarch’s immovable assets, both self-acquired and inherited by the patriarch.

Even if the second marriage is declared null and void due to the violation of the provisions of the Hindu Marriage Act, 1955, the children from this wedlock are considered legitimate. Under Section 16 of this Act, these children can claim equal rights over the property as the children from the first marriage.

The second wife and her children, even in case of an illegal marriage, have the right to maintenance under the Hindu Adoptions and Maintenance Act, 1956.

The children of the second wife from her previous marriages, however, have no claim over the erstwhile husband’s property after his demise.

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.

Right to maintenance of the second wife

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,” .

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,

Property rights of the second wife

By- Shambhavi 

VIP-AUTHOR