The Fate of Second Wife, in the Presence of First Wife in Hindu Law

The Fate of Second Wife, in the Presence of First Wife in Hindu Law

In Hindu law, second marriage is strictly prohibited and hence it is void ab initio. The void marriage does not create any legal rights and obligation upon either of the parties and thus second wife who has no legal status as a legally wedded wife, has no right of any sort. Regarding the same, there is no expressed provision under any statute (of Hindu Law) that discusses about the right of the second wife but through various recent judgments, the court held that for the purpose of maintenance, second wife is considered as a legally wedded wife and is entitled to have maintenance if she was kept in darkness about the first marriage of the husband.

 

Apart from the maintenance right, the second wife can also get the marriage annulled and can also make the husband liable for cheating on her under section 420 of Indian Penal Code, 1860.  Though the law does not provide any right to the second wife but it is in the discretion of the judges to grant maintenance to the second wife if she has been cheated by the husband by concealing the fact of his first marriage.

On the other hand, the children begotten from such void marriage will be considered as legitimate children and would have the right to inherit the personal property of the father only and cannot claim any right in the ancestral property of the father. 

Rights of second wife under Hindu Law

As discussed above that the second marriage, in the presence of first spouse, is not permissible and hence, is void ab initio. So, the void marriage does not give any right to second wife to demand maintenance from her husband. However, if we see the second aspect of such marriage, especially in the perspective of criminal law and as well as on the humanitarian ground, then we can conclude two points:

1. Bigamy is a criminal offence: Section 11 of Hindu Marriage Act, 1955 prohibits bigamy and Section 494 of Indian Penal Code makes bigamy as a penal offence.

Section 494 of Indian Penal Code states that

“Marrying again during lifetime of husband or wife — Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

So, the perpetrator of bigamy (if found guilty) will be punished, but the question of right of second wife is still un-answered as if she is not at fault, then why should she suffer at the cost of other’s mistake? 

So, to get the answer of this question, let’s check out the second aspect; though we I have been discussing since beginning that, second wife has no legal course, as no law defines her any right from such void marriage but by considering the first point discussed above, the second aspect arises i.e. of course the humanitarian ground.

2. On the Humanitarian Ground: If the second wife does not know about the first marriage of her husband and her husband deliberately cheated on her; then in such a condition, why will wife suffer because of her husband’s offence?

So, by considering these two points (discussed above) under the due process of law, in such cases, the Supreme Court and other High Courts of India judiciously ensured certain rights to such aggrieved wives while deciding such issues before it viz…

Right to Get the Decree of Nullity: The second wife has the right to get her marriage annulled.

Right to Maintenance: There is no expressed law that ensures the maintenance right to the second wife especially when she knows that the person with whom she is going to marry is already married, but if she does not know and her husband purposefully hides this fact, then judiciary decides the case in favor of the aggrieved party. The Supreme Court ascertained that Under the Section 24 of Hindu Marriage Act, 1955, such second wife will be given interim maintenance and under the Section 25 of Hindu Marriage Act, 1955, will be given permanent maintenance. 

Besides, such aggrieved wife has also the inferred maintenance right under Section 18 of the Hindu Adoption and Maintenance Act, 1956; under Section 125 of the Criminal Procedure Code, 1973; and under the Domestic Violence Act, 2005.

Case Laws:

Mallika and Anr v. P Kulandi, 1999

In this case, it was held that when the husband misrepresented the fact of his first marriage to get married, then the second wife, who is the victim in this case, has the maintenance right under Section 125 of Criminal Procedure Code, 1973.

Chanmuniya vs Virendra Kumar Singh Kushwaha & Anr 2010

In this case, the Bombay High Court has given a historic judgment by saying that even though there is no law that expressly ascertain the maintenance right to the wife of the second (void) marriage, but still such wife can ask for the maintenance and accommodation from her husband under the Protection of Women from Domestic Violence Act, 2005.

Moreover, it cannot be denied that the absence of expressed provision in Hindu Law in favor of the second wife (especially in the presence of first wife) dismays the fate of such aggrieved women. And, it cannot be also denied that many of the husbands take undue advantage of such lacuna. But at the same time, it also cannot be denied that in most of the cases of such type, judiciary always gives decision in favor of aggrieved wife.

But another undeniable fact is, there is no provision, hence, the fate of such women is entirely dependent upon the understanding and interpretation of the case by the presiding judges; so, in order to curb such issue, the legislature must pay attention and legislate certain concrete provisions in favor such women.