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RIGHTS OF SECOND WIFE

Author: Aryan Jain, III year of B.A.,LL.B.(Hons.) from BML Munjal University, Gurugram


Introduction

In India, a marriage is considered to be a sacrament where the husband and wife are bound in a holy union of life-long commitment. The marriages are solemnized by performing certain rituals and ceremonies, which makes it valid in the eyes of law. Therefore, second marriages, if solemnized in contravention to the law are considered void and have no legal effect. The major stigma of such marriages is the social status of the second wife and their children who are at the mercy of the husband, and with limited legal safeguards they have to live with the tags of ‘mistresses’, and their off-springs are considered as ‘illegitimate’ by the society. However, in the age of expeditious advancement, the societal norms regarding marriage are also fluctuating rapidly. Thus, the status of the second wife as per the legal perspective has also evolved with time giving rise to new dimensions.


Background

Before the enactment of the Hindu Marriage Act, 1955, marital laws were governed by customs and practices of various cultures and religions, who followed the practice of polygamy. This can be understood by the fact that earlier kings used to have multiple wives. There was no uniformity in the law regarding the validity of a subsequent marriage while the first one is in subsistence. The enactment of HMA, 1955 criminalized the bigamous and polygamous marriages and made them void. The void nature of second marriages has made it extremely difficult for the wives to claim maintenance as they are not regarded as “legally wedded wives”.


Although there is no explicit law dealing in the subject matter of ‘second-wife’, However, through judicial interpretation some personal and secular provisions of the law covered the ambit of the second wife in many cases and have provided them some basicincluding right to maintenance, right to property, etc.


Position of Second wife under different personal laws

The Hindu Marriage Act, 1955

The Section 5 of the Hindu Marriage Act, 1955, [1] specifies the conditions of a valid Hindu marriage. As per Section 5(1) of HMA, 1955, neither party should have a spouse living at the time of marriage. This amounts to bigamy, thus without finalizing a divorce with the first spouse if a person marries another woman, it would be void ab initio and would not be considered as lawful wedlock. In such a case the first marriage will only be considered legal in the eyes of law.


Also, section 11 of HMA, 1955 [2]talks about void Hindu marriages. In case of a marriage is in contravention to any of the conditions so specified under Section 5 (i), (iv), and (v) are not fulfilled then the said marriage will be considered null and void in the eyes of law.


And, as per Section 17 of HMA, 1955, [3]if a person marries another person while the first marriage is in subsistence and has a living spouse at the time of marriage, then they can be penalized under Sec. 494 & Sec. 495 of I.P.C. 1860. [4]However, if the person can prove that the first marriage was void as per Hindu law, then he cannot be held liable for bigamy under this section.


In the landmark case of Lily Thomas v. Union of India, [5]The husband has converted his religion to practice bigamy, while his first marriage was still in subsistence. The court held that as per HMA, a bigamous marriage is void ab initio, i.e., it is no marriage in the eyes of law. Thus, re-marrying, while the first marriage is in subsistence, is a criminal offense under section 17 of HMA,1955 [6], and the offending party can be penalized under section 494 & 495 of I.P.C 1860. Hence, it was established that conversion was not done in good faith, rather with an ulterior motive to practice bigamy.


1. Muslim Law

As per Islamic law a man is allowed to keep more than one wife, if they are capable to maintain all the wives equally after marriage. Although IPC, 1860 prohibits bigamy but according to Section 2 (7) Shariat Act of (1937)[7]of Muslim personal law, allows the application of polygamy to Muslim men. Which means a person can marry more than one spouse living at the same time under Muslim law. Hence, there is no express condition prohibiting bigamy under Muslim law. However, a Muslim woman under the Dissolution of Muslim Marriages Act, 1939[8]can claim for divorce if the husband fails to maintain her. It is also observed that Muslim woman usually have to seek the secular provisions of Section 125 of CrPC[9]to claim maintenance from former spouse.


In the landmark judgement of Mohd. Ahmad Khan v. Shah Bano Begum, [10]the supreme court held that a divorced Muslim woman, as long as she has not remarried, is a ‘wife’, and is also entitled to claim maintenance from the former husband under the secular provisions of Sec. 125 of CrPC. This is a secular provision of law which is applicable to all women, irrespective of their religion.


2. Christian Law

As per Christian law none of the parties intended to marriage should have an existing marriage. This implied that more than one marriage is illegal under Christian law.


3. Parsi Marriage Act

As per Section 5 of The Parsi Marriage and Divorce Act, 1936,[11], Bigamy or second marriage is strictly declared as null and void and will be subject to penalties as specified under Section 494 & 495 of the I.P.C. 1860.


4. Special Marriage Act

As per Section 44 of Special Marriage Act, 1954,[12] it says that if a person commits bigamy then they are liable under Sec. 494 & 495 of the I.P.C, 1860.[13]


Maintenance and property rights of second wife

The first step to prove a second marriage is that it should be in conformity with the personal laws and should not be void in the eyes of law. Therefore, to determine the rights of the second wife, the legality of the second marriage should be examined first hand. For an instance, in Hindu law polygamy is prohibited which means none of the parries should have a living spouse at the time of second marriage. Thus, legally, the second marriage is considered void if the first marriage persists. Although, there isn’t any express provision in the law that entitles the second wives for maintenance. However, both secular and personal laws have provided some scope for the inclusion of second wives for maintenance and property rights


1. Hindu marriage Act, 1955

The HMA, 1955 provides for the law of maintenance of both husband and wife as per sections 24 & 25.[14] Though, it is not specifically mentioned whether these provisions will be applicable for a second wife. But it has been observed that courts in many cases have interpreted these sections liberally by granting the right to maintenance or permanent alimony to second wives. For an instance, in the case of Rameshchandra Daga v. Rameshwari Daga [15]the apex court while providing maintenance to the second wife observed that “although the present status of bigamous marriages is illegal it cannot be regarded as so immoral to avoid compensation to an economically dependent spouse”. Therefore, if the court is satisfied with the facts and circumstances of the case, they can grant maintenance rights to second wives under this act.


2. Hindu Adoptions and Maintenance Act, 1955

As per section 18 of the Hindu marriage and adoptions act, 1956, [16]it is stated that a Hindu wife is entitled to maintenance from her former husband during her lifetime. The sub-clause 2(d) of the same section also states that ‘A Hindu wife can live separately from her husband without forfeiting her right to maintenance if the husband has any other wife living. This term “any other wife” has been interpreted liberally by the courts and thus, the act is also valid for the protection of maintenance rights of the second wife.


Also, as per the precedent Narinder Pal Kaur Chawla v. Manjeet Singh Chawla,[17] the husband misinterpreted the fact that he is already married and remarried the petitioner as per the ceremonies of the Hindu Marriage Act of 1955. The Delhi high court, in this case, held that the second wife, whose marriage is void has a right to be maintained under section 18 of the Hindu Adoptions and Maintenance act of 1956 because she was unknown to the fact that the defendant is already married and if maintenance is not provided then this would encourage the defendant to defraud the second wife.


3. Hindu Succession Act, 1956

As per Hindu succession laws if the second wife is legally married as per Hindu law, she enjoys all the rights and shares in the property of the deceased husband, as she is considered a class I legal heir with her offspring as per the Hindu succession Act, 1956. However, even if the second marriage is declared null and void due to the violation of provisions of a valid marriage as per HMA, 1955, the wife might not be able to claim right over the property due to invalid status of marriage. However, as per Section 16 of HMA, 1955 [18]the children born out of void marriages are legitimate and have rights of succession over their father’s property. Therefore, the property rights of second wife are dependent solely upon the legality of her marriage. However, the rights of second wife’s children have been clearly defined under Hindu succession laws and they can also claim maintenance as defined under Hindu adoptions and maintenance act, 1956.


4. Criminal Procedure Code, Section 125

As per section 125 of CrPC[19], a wife is entitled to claim for maintenance from her husband. Although, the term mentioned in the provision is only ‘wife’ but witnessing the lack of effective legislation in regard to the issue of second wives, the court have adopted a liberal interpretation of this provision, where the term ‘wife’ does not only refer to the first wife, but will also cover the ambit of second wife. Also, the onus of proving second marriage as void lies on the husband. If the husband fails to do so, then court will have the power to grant same rights of maintenance to the second wife. Some of the recent landmark judgements where the courts have harmoniously constructed the language of the said provision and tried to safeguard the plight of second wives can be seen in the following judgements:


In Badshah v. Sou. Urmila Badshah Godse [20],court decided upon the question that whether second wife would be allowed to get maintenance even if her marriage with the respondent (husband) was void as per Hindu law because the respondent had a living spouse and married the petitioner by misrepresentation. So, the court in this case held that if the marriage between the parties has been proved and the petitionerduped the respondent by suppressing the factum of his first marriage. He cannot be allowed to deny the maintenance to second wife on the ground that their marriage never existed as per Hindu law and thus, he could not take advantage of his own wrong. Therefore, the court held that second wife is entitled to maintenance undersection 125 of CrPC.


ü Also, in Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr. [21], the Court held that the term “wife” occurring in Section 125, Cr.P.C. should be widely interpretated. “If husband and wife are living together for reasonably long period, then strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C. so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.”


Therefore, with the wider amplification of secular laws of CrPC by Judiciary, it is well established that under the section 125 of CRPC, the second wife can claim for maintenance if she is not in a position to maintain herself.


Conclusion

In light of the above arguments and authorities cited, it is quite clear that the socio-legal status of a second wife in India society is quite unfortunate because of the social stigma attached with the second marriages. The similar resentment is seen from the legal perspective where no explicit legislation has been enacted to protect basic civic rights of second wives in the Indian society. Even though time and again judiciary through some important precedents have highlighted the dire need to protect rights of second wives in the society. However, most of the maintenance laws have been subverted in granting protection of maintenance and alimony rights to second wives. This can be comprehended by the fact that even section 125 of CrPC, only mentions the term ‘wife’ instead of ‘second wife’ which raises serious ambiguity to maintenance rights of second wives and they have to rely solely on courts for their basic right of maintenance. It is important to understand that bigamous marriages are the reality of society and silence over the rights of second wives are only leaving them destitute and helpless. Therefore, there is a dire need to amend the present maintenance laws like Hindu marriage act, Hindu adoptions and maintenance act, Hindu succession act and CrPC etc. to include rights of maintenance for second wives or to enact a separate legislation of maintenance of second wives.


References

[1] The Hindu Marriage Act, 1955, No. 25, S. 5 (1).

[2] The Hindu Marriage Act, 1955, No. 25, S. 11.

[3]The Hindu Marriage Act, 1955, No.25. S. 17.

[4] I.P.C. 1860, S. 494 & 495.

[5] AIR (2006) 6 SCC 224

[6]The Hindu Marriage Act, 1955, No.25. S. 17.

[7] Shariat Act of (1937), S. 2(7)

[8] Dissolution of Muslim Marriages Act, 1939

[9] CrPC, 1973, S. 125

[10] AIR 1985 SC 945

[11] The Parsi Marriage and Divorce Act, 1936, S. 5

[12] Special Marriage Act, 1954, S. 44

[13] I.P.C, 1860, Sec. 494 & 495

[14] The Hindu Marriage Act, 1955, No.25. S. 24, 25

[15] AIR 2005 SC 422: (2004) 6 Suppl

[16] The Hindu marriage and adoptions act, 1956, S. 18

[17] Civil 2606 of 2004

[18] The Hindu Marriage Act, 1955, No.25, S. 16

[19] CrPC, 1973

[20] AIR (2014) 1 SCC 188

[21] AIR (2011) 1 SCC 141

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