KESHAV VYAS
NATIONAL LAW INSTITUTE UNIVERSITY ,BHOPAL
Table of Contents
INTRODUCTION
PROOF OF SECOND
MARRIAGE
RIGHTS OF THE
SECOND WIFE IN INDIA
MAINTENANCE RIGHTS OF SECOND WIFE
PROPERTY RIGHTS
CONCLUSION
INTRODUCTION
In India, a second marriage during the duration of the first marriage is unlawful, and the connection that results from it is invalid. Despite the fact that the law is fairly clear on this matter, "second marriage" is a prevalent practise in Indian culture. Due to the aforementioned disparity between the law and social custom, second wives have limited legal protection. With the implementation of the Hindu Marriage Act of 1955 (HMA), one of the requirements for a lawful marriage was that neither party have a live spouse at the time of the marriage. After 1955, the aforementioned rule and Section 11 of the Hindu Marriage Act rendered second marriages null and void from the start. In this regard, the Hindu Marriage Act requires a marriage according to the traditions and rituals, as well as proof that the partner of the first marriage was a legally married spouse and that the second marriage was valid on the day of the second marriage.
Being a second wife, having no legal status, and being deceived into the marriage are all distressing for a woman. Despite not being recognised by law, a second wife may be able to collect support owing to court interpretation. Without clear laws, her prospects of claiming her rights rest on the judges' judgement.
PROOF OF SECOND MARRIAGE
It is required to provide evidence of a second marriage, and for this reason, it is crucial that the second marriage be performed in line with the basic rites, traditions, and rituals. A simple declaration that a person has remarried is insufficient evidence of marriage. Saptapadi and Homa are essential Hindu rituals that must be completed to validate a marriage. A second marriage can only be found invalid under Section 494 if it was done in accordance with all customs and rituals.
RIGHTS OF THE SECOND WIFE IN INDIA
There are no provisions related to the second spouse. The second wife has no legal standing because the second marriage is regarded null and invalid. However, she has various options.
Circumstances under which second marriages occur are:
- Husband remarries without divorce
- Marriage after the death of first wife.
- Marriage after Divorce with first wife.
- When the property is jointly titled.
MAINTENANCE RIGHT OF SECOND WIFE:-
- Maintenance under the Code of Criminal Procedure:-
In circumstances of divorce, the right to maintenance is granted under Section 125 of the Criminal Procedure Code, which states that if a man has treated a certain person as his wife, this can be used as proof of their marriage. In the matter of Mallika and Anr v. P Kulandi, when a man misrepresented the death of his first wife, he supplied support for his second wife.
- Maintenance under Hindu Marriage Act:-
Section 24 of the HMA gives for the right to maintenance. Despite the fact that this section does not grant any special privileges to the second wife in terms of maintenance, the bench has offered a broad interpretation of this clause in a number of instances, and today, a woman who is the second spouse has the right to maintenance under Section 24. Similarly, Section 25's provision for perpetual support has been widely interpreted by the court in order to safeguard the rights granted to the second wife. Once the marriage is dissolved, the husband will provide financial assistance to the second wife.
In Rajesh Bai v. Shantabai, a girl's marriage was annulled due to the fact that her husband was already married. Under the Hindu Adoption and Maintenance Act of 1956, the Honorable Bombay High Court ruled that Shantabai was eligible for an allowance.
- Maintenance under the Hindu Adoption and Maintenance Act, 1956:-
The Act stipulates that the second wife is entitled to support from her husband even if she has deserted him and discovered that he is married with another spouse. In a recent decision, the Court stated that the expression "living with another wife" does not imply that the husband should be residing with his first spouse. Existence of the first wife without separation is sufficient cause.
PROPERTY RIGHTS :-
In order to decide what advantages are granted to the second wife, the validity of the second marriage must be examined. Section 5 of the Hindu Marriage Act of 1955 outlaws polygamy and reads, "at the moment of marriage, none of the parties shall have a surviving spouse." Consequently, if this criterion is not satisfied, the second wife has no claim to her husband's property. In contrast, if the husband marries after the death of his first wife or after a divorce from his first wife, the marriage is lawful and the second wife has the same property rights as the first wife. This will apply to both sorts of properties, self-acquired and inherited by the spouse.
Traditions dictate that a second marriage is illegitimate unless it falls under the exceptions outlined in Section 494 of the Indian Penal Code. The second wife does not often have the same rights as the first wife. If the marriage is valid, the second wife may be entitled to her husband's assets. In the viewpoint of the law, the second woman whose marriage to her husband has been ruled null and void is not entitled to support. However, if she can demonstrate that she was unaware of her husband's former marriage, she is eligible for maintenance. Children born from a second marriage (whether legitimate or illegitimate) have the same property rights as those born from the first wife.
The second wife will have no claim to her husband's family or inherited property, but she will be able to claim his self-acquired property. If the marriage is not recognised by the law, the husband may leave his self-acquired property to anybody, including his second wife, through a will. However, if the spouse passes away without a will, his possessions will be distributed among his heirs in accordance with the succession laws that apply to him. If the second marriage occurs after the divorce or death of the first wife, the second marriage will be regarded lawful, and the second wife will have full right to her husband's inherited and earned property.
CONCLUSION:-
The social shame associated with becoming a second wife, the lack of legal standing for the partnership, and the immense anguish of being duped into the marriage are unquestionably distressing for a woman. Due to the interpretation of existing legislation by the courts, a second wife may be eligible for maintenance despite the fact that she is not recognised under the law. In the lack of explicit legal requirements, her chances of asserting her rights are primarily dependent on the judicial discretion.
Even under criminal law, it is exceedingly difficult to show bigamy since the marriage must have been properly performed in order to establish the crime of bigamy. Typically, males use these legal loopholes to defend themselves in such situations.
In light of these contradictory legal precedents, legislators should provide explicit protections for the rights of women who have been deceived into "second marriages" in order to provide them with relief.
1. The Hindu Marriage Act,1955, §17
2. The Indian Penal Code,1860, § 494
3. Rajeshbai And Ors. vs Shantabai available at: https://indiankanoon.org, 327 (Bombay High Court april 28, 1981)
4. Maintenance rights of a second wife in India. (n.d.).
Retrieved August 11, 2022, <https://www.myadvo.in/blog/second-wife-is-also-entitled-to-maintenance-under-section-125-of-crpc-supreme-court>
5. Property Rights of the second wife in India. The Sunday
Guardian Live. (n.d.). Retrieved August 11, 2022, from <https://www.sundayguardianlive.com/legally-speaking/rights-second-wife-india>
6.
Does A Second Wife Has Right Of Maintenance In India available at:https://blog.ipleaders.in . (n.d.).
7.
Rights of Second Wife – With reference to Bigamous Marriage in
India, available at: http://www.legalservicesindia.com
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