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Property rights of the second wife & her children


Succession laws in India treat a second wife equal to the first one, if the marriage was performed after the demise of the first wife, or the finalisation of divorce between the first wife and the husband. The legal position of the second wife is also equally stable with respect to property rights, if the marriage is solemnised seven years after the first wife left her husband and the latter has no idea about her whereabouts or living status.

In either of these situations, the second wife and her children will have the same rights on the property of her husband as the first wife and her children.

However, the property rights of a second wife would be next to negligible in case the marriage is void. Now, what makes a marriage void in case of a second wife?

 

Legality of the second marriage

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’.

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.

 

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 the second wife in a second marriage

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).

 

All about property rights of the wife and her children in a second marriage

 

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: 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.

 

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,” 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.

 

Property rights of the children from the 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 Hindu daughter under the 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

 

FAQs

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.

 

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