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Deepanshu (Proprietor)     21 May 2013

Can second wife claim share in property during divorce?

Hello LawyersclubIndia

 

Could you please take some time and help me. I want to ask a couple of questions.

 

My first wife died some years ago. I have 2 kids from from first wife. Due to constant pressure of society and elders I had to marry another woman who was a divorcee (no dowry). That woman has 1 daughter from her first husband. Note - I have no kids from my second wife, no physical contact, no s*x. Second marriage is 14 months old. 

 

Unfortunately due to some situations, her constant nagging behavior, unrealistic demands and non-compatibility with her, I am thinking to go ahead with divorce (she still stays with me at the moment).  I want to know:

 

1. What are the chances of getting divorce without mutual consent i.e. she does not agree to divorce me but I want to? What should I do in that case?

 

2. My second wife is a teacher, owns a property herself in her name and earns 17,000 Rs per month. She used to live in her house by her own along with her daughter for some years before our marriage. I own a property as well in my name where we used to reside after marriage for few months but we are living on rent at another place at the moment and my property (house) is vacant. I want to ask can she make any claim in my property or not? Do you advise it to transfer it to my son's name at the moment before I go for divorce appeal?

 

3. Is she eligible for any alimony or monthly maintenance? If yes how much (rough idea).

Note - She used to live with her daughter and took care of herself and her daughter for several years and she also owns a property in her name.

 

Kindly advise me regarding above. Any other suggestions?

 

Thanks for reading.



Learning

 10 Replies

Adv Archana Deshmukh (Practicing Advocate)     21 May 2013

Your second wife cannot claim anything from the house property in your name. If she is able to maintain herself at the living standard at par with yours from her own salary then, she won't be entitled to maintainance. However, most importantly while going for contested divorce, you should have 'legal grounds' for divorce and not just that 'she is nagging me' or 'we are incompatable with each other'. Better option would be that, you both go for marriage councelling at a good marriage councellor and try creating understanding between each other and improve the relationship. You both have lived with some other spouse for quite some time of your life, so might be having difficulty in adjusting with a new one. You both are matured and its a second marriage for both of you so instead of thinking of divorce, try to work upon it and make it successful.

1 Like

Krish Narayan (Advocate)     21 May 2013

I agree with Adv Archana...

Adv k . mahesh (advocate)     21 May 2013

In your case 

1. Your first wife is No more and you married a Widow who is having a daughter

2. her she has a share in your property as now she is legally wedded wife 

3. https://articles.timesofindia.indiatimes.com/2010-04-20/goa/28126814_1_first-wife-civil-code-marriage you will get complete picture once you read this article 

4. Maintaienece already she is working there is no chance ot paying 

5. By first wife you had a kid and now you are having two kids so plan to take care the family take her outside and talk to her do not be in hurry for divorce step 

dr g balakrishnan (advocate/counsel supreme court)     21 May 2013

mahesh is right. your second marriage is right under law. u cannot contest otherwise. her earnings are her own and every woman has a right of her own properties. yes she has a right over you as a second wife. u never entered into a contract saying that she will have no share over your self earned proprties, so womens law protects women today; so u cannot escape liability there is no pint you saying you have no s*xual link with her but you ha voluntarily not used that does not mean she denied though she stayed outside your house; yes she has rights, as your traditional approach will be treated by court that you adopted traditional approach for your own convenience please .Law never permit pleas with unclean hands pls. so better compromise with sensible approaches, courts cannot help; probably mediation can help!

Deepanshu (Proprietor)     21 May 2013

Thanks for your replies guys. Unfortunately I am not willing to patchup since she is too arrogant, non cooperative, even my kids are tired of her as she fights with them whole day. I am not able to concentrate on my business properly and suffering lot of stress so its best for me and my kids to part ways from her.

I am still confused whether she has a right on my property or not? Adv Archana says no but k.mahesh says she has. Contradictory answers? Please clear. Thank you

Adv Archana Deshmukh (Practicing Advocate)     21 May 2013

Legally speaking, a wife do not have any ownership right over the property standing in the name of the husband during his lifetime. Of course she can claim maintainance if she is unable to maintain herself and claim right of residence in the shared household under DV Act but not ownership rights.

Adv k . mahesh (advocate)     22 May 2013

Wife has a share in the property of her husband and this is a legal right 

Here you are planning to part ways from her means you want to take divorce 

means she wont divorce you easily but by paying some alimony as she demands may say she may ask to write that house or give x amount to sign the divorce papers u/s 25 of HMA act

in that purview i said your second wife who is now legal wife to you has share in your property 

divorce is not easy step to take standing in the q and getting it you have to struggle for it by paying alimony to her without that you wont get 

during your life time she has only share that house and can demand maintenance from your end even if she is working she can demand because she can say that for better education and leaving standard for her daugter she wants maintenance from you 

(that why i said to read that article you would be cleared with all doubts)

 


(Guest)

She was a divorcee and not a widow, maintenance for her child is the collective responsibiliy of her and her previous husband.

Shantanu Wavhal (Worker)     22 May 2013

Second marriage is 14 months old. 

 

no physical contact, no s*x.

 

Unfortunately due to some situations, her constant nagging behavior, unrealistic demands and non-compatibility with her

 

be wise.

find the root cause.

dont unnecessarily aggravate the situation

dr g balakrishnan (advocate/counsel supreme court)     22 May 2013

divorse is = widow; your marrying her is like marying  WIDOW; divorse means she feels he demised in her life so divorse stucture is accepted in west and yet it is ethical there and the her new husband takes care of her children besides her so they say your children are playing with our children or my children till tne new wedloc produces common child of over aged naturally menupose may obstruct child growth however the story in both cases she qualifies as widow you as a  widower. secondly why she shd marry you do you think just for s*x certainly not  but for real companionship to peace of mind to each other not to quarrel but to adjust; if that aspect is not understood naturally marriage idea is not for you if you fall in the non adjustable category so you have to suffer the rules of law that has t be followed sir. yes it is upto you what you do; if you do not patch up stress and psychological worry for both of you and that worry eat both of you sir, both settle for patch up and live together is my advice that is to be divine peace for oth of you; your children do not adjust is normal to any new woman in the house; so that is no big excuse; further you may not have consulted your children before marrying her  that may also be a grouce! so escaping tendency at earliest opportunity is not fair as you fall under prosecutor is a judge principle sir!


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