Property rights of the second wife and her children

Property rights of second wife

Property rights of the second wife and her children can be studied and evaluated as rights of the second wife and her children born out of the second wedlock, in the property of their father.

Polygamy was recognised and acceptable among Hindus in ancient times. In modern India, we have a law in place, Hindu Marriage Act, 1955, which prohibits bigamy/polygamy. Wife is entitled to various rights if the marriage is valid under the Act.


Also Read: Legal Rights of a Wife


Valid marriage:

A marriage is valid under Hindu Marriage Act if it satisfies the conditions given under section 5 of Hindu Marriage Act, 1955.  One such condition is that at the time of marriage neither party has a spouse living or an existing valid marriage. If at the time of second marriage, any party has a spouse living or the earlier marriage has not been set aside by way of a decree of divorce/annulment, then such a second marriage is illegal.

Status of second marriage and rights of the second wife:

  • When the person governed by the provisions of Hindu Marriage Act, has married the second time and the second marriage is null and void, the second wife in such a situation has no right to inherit any property of her husband
  • If the second marriage is a valid marriage as per the provisions of the Act, then such a second wife has same rights in the property of her husband as that of the first wife.

The right of children of the second wife:

  • In case, the second marriage is a valid marriage, children born out of this wedlock share equally with the children of the first wife.
  • Even if the second marriage is void or voidable under the Hindu Marriage Act, the children of the second marriage are considered as legitimate children, and they have a right to inherit from the property of their father.
  • However, under section 16 of the Hindu Marriage Act, such children have a right to inherit the property of their parents alone.
  • They can inherit the property of their father, whether self-acquired or ancestral but not the ancestral joint family properties. It implies that they cannot inherit ancestral property other than the share of their father in the ancestral property.
  • The law says that the children of the second wife have equal rights as the children of the first wife on their father’s (self-acquired and ancestral) property. 

Read: Financial settlement during the divorce


The right of the second wife to maintenance:

If the second marriage was performed without disclosing the fact of existing first marriage, the second marriage is not valid. However, the second wife gets the status of a legally wedded wife only for claiming maintenance.  Children of such second marriage also have a right to maintenance.

This right has been recognised by courts while interpreting the law to advance the objective of the Act and to suppress the mischief of the second marriage (bigamy) as intended by the legislature.

 The right of second wife’s children from her previous marriage:

Even if the second marriage is valid under the Hindu Marriage Act, the children of the second wife from her last marriage have no right to inherit the property of deceased (their father from second marriage). The stepson is not included in the term “son” used in the class of heirs in Hindu Succession Act.  It can be a natural son or an adopted son.

Property rights of second wife are subject to the status of second marriage. If the second marriage is valid as per law, she enjoys equal rights in the property of her husband as the first wife has otherwise no right to inherit.

Indian Law about Alimony Rights

Divorce Alimony Rights

Whatever be the grounds for divorce, the underlying truth about marriage is that it becomes the obligation of both parties to support each other once they are in this relationship. It continues even after divorce and is known as Alimony. It is a monetary compensation granted to the spouse who is unable to help himself/herself. The right of alimony depends on the earning power of the person and the person who is economically dependent on the marriage. The individual can be a spouse, dependent children, and even poor parents.

There are two types of alimony:

  • Maintenance amount that is given during the time of court proceedings
  • The second one is the money given at the time of legal separation

The alimony can be taken as:

  • a one-time lump sum amount
  •  as a fixed payment – it can be monthly or quarterly or as per the requirement of the spouse

Who is entitled to the Alimony Rights?

It is usually the woman who has the alimony rights. Sometimes, it is possible that the man can prove that he has been harassed and the court would order the female to compensate for that.

The husband can also be ordered by the court to return the ‘Stree-dhan,’ which is all the assets received by the woman at the time of the marriage. This would be all that has been received by her both from her parents and her in-laws.

What is the entitlement during grant of Alimony Rights?

The amount to be paid could vary and is fixed by the court depending on the individual cases and situations.

Factors that impact the amount and duration of alimony are as follows:

  • the length of the wedding, for example, if the couple is married for a decade the entitled person will receive a life-long maintenance
  • the spouse’s age and health  the earnings or economic condition of the individual who is to provide the alimony – also any other property that he/she owns
  • the health of both spouse
  • the general behaviour of the two parties
  • the spouse that maintains child custody would be entitled to either receiving greater amount while the child is a minor or pay lesser maintenance
  • the expenditure that can be incurred upon the child’s education and upbringing.
  • the social standing and the way of living that the wife was used to when she was living with her husband.
  • Other aspects/circumstances of the case, that the court feels need to be considered
  • Other genuine liabilities of the husband, such as wholly dependent old parents, may be duly examined by the court. If the wife is employed/working and has her independent sources of income, the same may also be taken into account

Who gets the alimony?

Wife – there can be three possibilities in this case.

a) when she is earning – in case the man has a very high earning power and has a decent financial status then she would be entitled to alimony.

b) when she is not earning – in this case, the man has to ensure that the woman gets to maintain her standard of living as she has been following all her married life.

c) if she remarries-if the woman remarries, then the man has to pay only for the children and not the woman.

The Hindu marriage act, 1955, is the guiding factor for those who are governed under it – specifically the section 25 of the act. At the time that the divorce decree is finally granted, the section is taken into consideration. If, however, an application is made for this purpose even after the divorce, the court will consider this and grant alimony. In a judgement given by the Supreme Court in the year 2013, it was maintained that:

“… While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. … the court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. … it is the duty of the court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune.”

Further, the court can cancel all alimony rights for the individual if it finds out that the particular person has remarried, or has indulged in other relations outside wedlock.