Rights Of The Second Wife

KEY TAKEAWAYS

• The primary test of the legal status of a marriage lies in whether any and all former marriages have been dissolved by the competent Court of law by process of divorce or automatic dissolution by the death of the former spouse.
• The second wife enjoys all the conjugal rights as was enjoyed by the first wife of the husband.
• The second wife is entitled to claim property of the deceased husband, self-acquired, ancestral, and joint-family property.
• The second wife is entitled to claim maintenance.
• The children born of such subsequent legal marriage enjoy the same legal rights as the children born of the previous marriage.

INTRODUCTION

The various family laws in operation in India recognises the conjugal rights of a married couple in an almost similar manner. The expression “conjugal rights” signify two ideas:

• The right of the couple to have each other’s society.
• The right to marital intercourse.

India is a country which now does not allow polygamy or polyandry in any way even under the personal or family laws in operation in the land. Before a Public Interest Litigation (PIL) was filed by Ashwin Kumar Upadhyay challenging the practice of bigamy to be violative of Section 494 of the Indian Penal Code, 1860 and further went on to submit in his plea that the provisions of Nikah halala under Muslim Law amounts to rape under Section 375 of IPC.

The second wife, if such marriage is a legal marriage, i.e., in compliance with all the provisions of the personal family laws or the provisions of the Special Marriage Act, 1954, if such marriage is amongst two people who want to participate in marital laws which are secular, i.e., irrespective of religion or faith followed by either party, enjoy the conjugal rights, rights of custody of children and rights of inheritance as much as the first wedded wife would have, had she been alive and not divorced from the husband.

A second marriage is legal in the territory of India as long as there are no living spouses of either parties to the marriage. That is, the parties to the marriage might have lost their former spouses to death or they have undergone the process of divorce in order to dissolve the marriage, before they participate in another marriage.

BACKGROUND

A second wife may be one who is wedded by the man before the dissolution of the first marriage by way of intervention by the Court by the process of divorce or the marriage undergoes automatic dissolution due to the death of the first wife.

In the former case, such subsequent marriage does not amount to a valid marriage for the provisions of inheritance, custody of children and other conjugal rights for that matter. Polygamy or polyandry has been inoperative in the territory of India since the implementation of the Hindu Marriage Act, 1955, for the Hindu, Sikh and Jain population of the country. Such Act imposes monogamy under the provisions of Section 11 of the Act. Section 17 of the said Act read with Sections 494 and 495 of the Indian Penal Code deals with the punishment of offences related to polygamy. In the case of Trailokya Mohan v State of Assam - AIR 1968, Assam 22, the petitioner had married a second time during the lifetime of his first wife, thus committing an offence under the provisions of Hindu Marriage Act.

Polygamy was allowed under the provisions of Muslim Law subject to the provisions of Muslim Personal Law Application (Shariat) Act of 1937 as has been interpreted by the All India Muslim Personal Law Board. polyandry was totally illegal while polygamy was allowed up to a total of four wives. Post the Supreme Court ruling in the Ashwin Kumar Upadhyay PIL, only monogamy is allowed in the Indian subcontinent, and all other marriages are considered invalid, all such children conceived out of such marriages are considered to be illegitimate.

The subsequent marriage of a person after the death of his or her former spouse is valid in the eyes of the law [Lalchand Narwali v. Mahant Ram Rupgir].

Therefore, the legal validity of the marriage has to be first tested in order to further determine the legal standpoint of such second wife regarding her conjugal rights and the rights of any child born out of such marriage.

LEGAL STANDPOINT

The major personal laws in operation in the country are Hindu Laws and Muslim Laws. The personal laws of Jains, Buddhists, Sikhs, etc., come under the ambit of the Hindu law.

Hindu Law regarding conjugal rights of second wife

In case of a valid second marriage, according to the provisions of Section 5 of the Hindu Marriage Act, 1955, the second wife enjoys all the rights relating to property as the first wife would have. In case of a marriage made void by law, the second wife does not enjoy any such right to inheritance.

The children born out of such a valid second marriage enjoy equal rights to inherit self-acquired or ancestral property as the children of the former wife and other coparceners. Such children also have the right to claim the joint-family ancestral properties of their father.

The children born out of void or voidable marriages, according to the provisions of the Hindu Succession Act, 1956, have an equal right as coparceners in the self-acquired or ancestral property of the father. However, they cannot claim their right on the ancestral property jointly owned by their father and his relatives.

Although, the children of the second wife born from any previous marriage she might have had are not entitled to the property rights of their stepfather. A relevant example in this regard would be the case of Neelamma and Ors. v. Sarojamma and Ors.

The second wife, irrespective of the legality of the marriage, can claim maintenance from such husband. The children born out of such marriage are also entitled to claim such maintenance.

Muslim Law regarding conjugal rights of second wife

A childless Muslim widow, according to the provisions of Muslim Law, is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts. However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband's property.

If a Muslim man marries while he is ill and subsequently dies of that medical condition without recovering briefly or consummating the marriage before his demise, his widow would have no right of inheritance. But if her ailing husband divorces her and afterwards, he dies from that illness, the widow's right to a share of inheritance continues until she remarries.

Under Muslim law the following persons are entitled to maintenance:

• Wife
• Young children
• The necessitous parents
• Other necessitous relations within the prohibited degrees.

Therefore, a wife is entitled to compulsory maintenance by her husband under the provisions of Muslim Law. Since the Hanafi and Shia laws both recognise polygamy as to be religiously valid, the rights of the second wife does not differ from the first wife in any way, even if such marriage is conducted within the lifespan of the former spouse of the husband.

The children out of all subsequent marriages of a Muslim man have the right to claim their share in the property. [Rahmat Ullah And Ors. vs Maqsood Ahmad And Ors].

CONCLUSION

A second wife has all the legal rights on her husband’s property, provided her husband’s first wife had already passed away or divorced before the husband remarried. Her children have equal rights on their father’s share as do the children borne of the first marriage. In case the second marriage is not legal, neither the second wife nor her children enjoy the privileges of legal marriage.