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Key Takeaways

  • Under Hindu law, a second wife is not a legal heir when the husband remarries while the first wife is alive (S.5 of Hindu Marriage Act, 1956 and Indian Succession Act, 1926). Under Muslim law, a second wife is a valid legal heir and can obtain a legal heir certificate.
  • Second-wife has the right to claim inheritance in the property of the husband when the husband marries her after divorcing the first wife or marries her after the death of the first wife.
  • Children of second-wife are considered legitimate (S.16 HMA, 1955) and can inherit as Class-I heirs under the Hindu Succession Act, 1956.
  • Removal of the name of a person who is not a valid heir has been permitted by Courts in India. (Smt. Prabha Dubey And Ors. vs Smt. Santosh Dubey, 2005 (1) MPHT 215, Sharmila v. State of Kerala and Ors., WP(C) No. 3108 of 2015 (K))

Introduction

This article discusses the laws relating to the Right of Inheritance, a second wife possesses in India under the Hindu Succession Act, 1956, the Indian Succession Act, 1925, and Muslim laws. It also specifies caselaws that deal with the removal of the name of legal heirs from the Legal Heir Certificate by obtaining the permission of the Court when there is a dispute regarding the legal heirs.

Legal heirs under the Hindu Succession Act, 1956

The Hindu Succession Act, 1956is applicable to Hindus, Jains, Buddhists, and Sikhs.

The following are considered legal heirs as per the Hindu Succession Act, 1956:

  1. Spouse (Class I heir)
  2. Children (Class I heir)
  3. Parents – Mother (Class I heir), Father (Class II heir)
  4. Siblings – Brother (Class II heir), Sister (Class II heir)

A second wife cannot claim property or be considered a legal heir under the Hindu Marriage Act, 1955 if the husband remarries during the lifetime of the first wife or when the marriage with the first wife is still subsisting. Under Section 5 of the Hindu Marriage Act, 1955, if a husband remarries while the first marriage exists, then in that case the second marriage becomes void. The second wife can inherit property only under two scenarios, i.e., when the husband remarries after he divorces his first wife or when the husband remarries after the death of his first wife.

The children of the second wife, irrespective of the validity of the second marriage, are entitled to inherit as per Hindu Succession Act, 1956. They are considered legitimate as per Section 16 of the aforementioned Actand theyfall within the category of Class I heirs. So, the children of the second wife can inherit equally along with the children of the first wife.

Legal heirs under the Indian Succession Act, 1926

The Indian Succession Act, 1926 is primarily applicable to Christians. It only applies to those relations that arise out of lawful marriage and hence a second wife (of a void marriage) cannot have a claim over the husband’s property even under the Indian Succession Act, 1926. The division of property under the Indian Succession Act, 1926 takes place between the widow and lineal descendants such as children and children’s children, where the widow inherits 1/3rd of the property of the husband and the remaining two-thirds goes to the lineal descendants.

Legal heirs under Muslim law

The Holy Quran, the Sunna, the Ijma, and the Qiya are the tenets that govern Muslim law. The inheritance of property under Muslim law takes place among 12 shares: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son's son or son's son’s son, and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.

Under Muslim law, the wife is entitled to 1/4th share of the property of the husband when he dies without any lineal descendants. In case, he leaves behind lineal descendants, then the wife inherits 1/8th of the property. If the husband leaves behind several widows, then each will inherit equally. Hence, under Muslim law, a secondwife will be considered a valid legal heir and can obtain a legal heir certificate in her favor.

Legal Heirship Certificate

A legal heir certificate can be issued by revenue officers such as Tahsildars, Revenue Mandal Officers, or Taludars. Legal Heir Certificates do not conclusively determine the legitimate class of heirs of a deceased person under the laws of succession or title to heirs in the case of a disputed property. So, in case of a dispute, the revenue officer must direct the heirs to approach the civil court for the declaration of rightful heirs.

Difference between a Legal Heir Certificate and a Succession Certificate

A legal heir certificate specifies the names of living heirs of a deceased person whereas a Succession certificate establishes the credibility of the legal heirs and authorizes them to inherit debts, securities, and other assets that have been left behind by the deceased. A legal heir certificate is important while making claims for pension, provident fund, gratuity, and other service benefits being conferred by the Central and State government departments.

Removal of the name of a person who is not a legal heir from the legal certificate

The name of the second wife can be removed from the legal certificate through a court order even though she is not a valid legal heir. It was held in the case of Smt. Prabha Dubey and Ors. vs Smt. Santosh Dubey, 2005 (1) MPHT 215, by the Madhya Pradesh High Court that the second wife was not entitled to a succession certificate as the husband had remarried during the subsistence of the first marriage. The court allowed the children born out of the second marriage to claim succession in the property in view of S.16 of the Hindu Succession Act, 1956.

In the case of Sharmila v. State of Kerala and Ors., WP(C).No. 3108 of 2015 (K), the Kerala High Court, allowed for the removal of the father’s name from the legal certificate as he was not a legal heir as per S.8 of the Hindu Succession Act, 1956,since the deceased was survived by his mother and wife. Hence, the Court allowed for the correction of the legal certificate.

Conclusion

A second wife is not entitled to claim an inheritance and a legal heir certificate when the husband remarries during the subsistence of his marriage with the first wife as per the Hindu Succession Act, 1956 and the Indian Succession Act, 1926. As per Muslim law, a second wife is a valid legal heir and can obtain a legal heir certificate under her name. The removal of a name of a legal heir from the legal heir certificate can take place based on the discretion of the court when it is proven that the name of the person that needs to be removed is not a valid legal heir.


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