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Key Takeaways

  • The concept of marriage is very auspicious in India and especially for Hindus.
  • When a second marriage is done, the legitimacy of the children was initially disputed, but later on, they were given legal status as to that of a legitimate child.
  • The children have the right to inherit the property of their parents unless expressly forbid by the parent.
  • The provisions under the Indian Succession Act specify the rules for inheritance of the property under intestate succession and Will.
  • The Supreme Court has yet to interpret and decide the children's rights from a second marriage in the case of ancestral property.
  • The article specifically deals with the inheritance rights of children in the Hindu religion and the legal status of the same.


In India, marriage is considered a sacrament and a bond for seven births. It is a decision that needs to be made with careful thinking and preparation for the same. If you run steadfast into a marriage, it would only create problems and lead to a ruined relationship. Love marriage and live-in relationships are concepts that are not very accepted in India even today, and this gives rise to the majority of the marriages being arranged marriages.

Let us say a man/woman loves someone else and has to marry someone due to family pressure. There is a high likelihood of differences arising between the husband and wife as they would not know their compatibility, which would lead to numerous disagreements and fights. These sometimes lead to domestic abuse, sometimes cruelty on either spouse's part, and sometimes to divorce. Two circumstances can arise from such a situation, i.e., they can get divorced and get married again, or in some instances, get married again without the knowledge of the existing spouse or the family members.

The question that arises is what happens to the children born out of both marriages and will be eligible to inherit property from the parents? The Hindu Marriage Act governs these and the Hindu Succession Act. The Indian laws about Hindus are responsible for ensuring that the children's rights in the property of their parents are not hampered.

Inheritance Laws

The Indian Succession Act of 1925 calls for two types of succession: testamentary and intestate succession. When a written Will is created, testamentary succession applies. When a Will is not prepared, and the deceased person's property is to be dispersed according to the existing laws based on religion, intestate succession is used.

The Indian Succession Act regulates the general succession laws. If the succession is Testamentary or Testate, the transfer is governed by the statute mentioned above. However, if no formal will has been prepared, the succession is determined by the laws of each religion. Under testate succession, the deceased person's property is shared equally among his or her spouse and children, including persons of all faiths. On September 30, 1925, the Act was passed to direct and regulate property succession following a person's death.

Intestate succession occurs when a person dies without leaving a valid and enforceable Will. The principles of asset distribution, in this case, are based on the Deceased's laws. If a person forms a Will for the only portion of their property and leaves the balance out, or if the will is deemed to be invalid for any reason, the balance property will devolve according to Intestate succession principles.

A will or testament is a legal document or declaration that expresses a person's wishes and names one or more people who will administer or acquire his estate after death. A copy of the will is certified under the seal of a competent Court, together with a grant of administration of the estate to the testator's executor/legatee. It serves as formal proof of an executor's authority. Following the death of the person who made the will, a court procedure to determine the validity of the will created by the testator may be commenced. These are known as probate proceedings.

Generally, witnesses are called upon to testify to the legitimacy of the will during the proceedings. The person writing the will should be competent; that is, he should not be under the age of 18 and should be of sound mind. The probate court merely rules on the will's validity and does not consider the case's merits. Hindus, Muslims, and Christians have differing laws regarding intestacy succession.

The Hindu Succession Act regulates Hindu succession, including that of Jains, Buddhists, and Sikhs. If a property owner dies without a properly prepared will, the situation is handled under the Hindu Succession Act of 1956. If a Hindu citizen converts to another faith, their descendants are exempt from the Hindu Succession Act until they return to Hinduism.

Because of the presence of the Hindu system as a Hindu Undivided Family as per Hindu Law, the Indian Succession Act is not relevant if there is no written disposition. The Hindu Succession Act was enacted in order to facilitate property transfer based on Hindu customs and culture.

Illegal Second Marriage Inheritance

When a man marries a second woman and children are born out of that marriage, the inheritance rights would be equal for the children born from the first marriage and for the children born from the second marriage when the second marriage is done after divorce. However, what happens when the second marriage is void?

The Hindu Marriage Act, Section 5, discusses the elements that must be met for a marriage to be considered legitimate. The parties' husband or wife should not be living or alive at the time of the second marriage, or the first marriage should have been dissolved at the time of the second marriage. Otherwise, the second marriage will be ruled void under Section 11 of the Hindu Marriage Act.

According to Section 494 of the Indian Penal Code, it is considered bigamy if a person marries when their husband or wife is still living at the time of the marriage. If the husband or wife believes the other is cheating, they can file a complaint under Section 415 of the Indian Penal Code. The presumption provision is mentioned in section 114 of the Evidence Act when it comes to facts involving human actions.

Second marriages have no legal standing while the original marriage is still in effect since second marriages are regarded void. As a result, the second wife has no legal rights. However, there are remedies. If a guy marries a woman while still married to his first wife without disclosing the earlier marriage, the second wife might file a cheating action.

It is difficult for mothers whose marriages have been ruled null and invalid to keep their children. There are no rights for the second wife, and obtaining maintenance from such a void marriage is extremely difficult. As a result, under Section 16 of the Hindu Marriage Act, any child who would have been genuine if the marriage had been valid is considered legitimate. As a result, any child born of a void marriage is legitimate and has equal rights to their father's or mother's property. This rule likewise covers children born out of a live-in relationship. In their father's self-acquired and ancestral property, children born out of void marriage have the same rights as the first wife's children. However, they will not be able to inherit ancestral joint family properties. Children from a void marriage will only receive a share of their father's or mother's property.


The societal shame of being a second wife, the lack of legal basis for the relationship, and the immense anguish of being duped into marriage are all tremendously depressing for a woman. Even though a second wife is not recognized, due to judicial interpretation of existing laws, the children born will retain their rights and will not be harmed due to the parents' poor decision. The legislature has ensured that children are not given illegitimate status because it hampers their rights and causes them much emotional trauma due to society's non-acceptance of children born outside wedlock.

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