What is the share of the Second Wife and her children in a property?

At the onset, it is essential to mention here that the rights and share of the second wife along with the children born out of wedlock are grounded on numerous aspects under the Hindu Marriage Act, 1955. This act governs the legality of the second marriage, and it further regulates the laws of succession among the legal heirs.

Along with the law mentioned above, the Hindu Succession Act, 1955 inculcates upon the wife absolute rights over the husband’s property when the husband passes away. However, there are several conditions to be looked into if the husband gets remarried.

The property rights of the second wife

Most importantly, to determine the property rights of the second wife, it should consider the legality of the second marriage. Hindu Marriage Act, 1955, section 5, prohibits polygamy, and it states explicitly that the husband or the wife should not have a living spouse at the time of marriage. As a result, if the husband remarries and has a wife at the time of second marriage, such marriage would be void in the eyes of the law. The law will not consider the second wife’s entitlement to any share in the husband’s property. It would be necessary to mention here that:

· If the second marriage is valid, i.e., the husband remarries after his first wife passes away or gets a divorce from her, then the second wife will be eligible to enjoy the same rights as the first wife in the husband’s property. It is also pertinent to mention here that the rule mentioned above is valid for the self-acquired and ancestral property of the husband.

· Under the Hindu Succession Act, 1956, it is provided for the following members as Class I legal heirs to the deceased person’s estates, in case he dies intestate, i.e., without making a Will: -

1. Son
2. Daughter
3. Widow
4. Mother
5. Son/Daughter of a predeceased son
6. Widow of predeceased son
7. Son/Daughter of a predeceased daughter
8. Son/Daughter of predeceased son of a predeceased son
9. Widow of predeceased son of a predeceased son

Hence, the children born out of the valid first marriage and second marriage will have equal rights over the property, irrespective of being self-acquired or ancestral.

If the second marriage is declared to be null and void because the provisions of the Hindu Marriage Act, 1955 were not complied with, the children born out of this wedlock are legitimate. Such provision is explicitly mentioned under Section 16 of the Act. These children can claim equal shares over the property or land as the children from the first marriage.

It will be pertinent to state here that the second wife and her children are entitled to the right to maintenance under the Hindu Adoptions and Maintenance Act, 1956, irrespective of the fact that this marriage is not valid in the eyes of the law.

However, the issues/children of the second wife from her first husband are not entitled to any share in the property of the second husband even after his demise.

Following are the few paradigms which can be taken into consideration while distributing the share of a second wife and the children:

Situation 1: When the husband remarries without legally divorcing his first wife, who is still alive

In such a situation, after the husband’s demise, the first wife, her children and the children of the second wife will be entitled to get an equal share in the property. However, the second wife will not be entitled to any share of the property.

Situation 2: When the husband remarries after the death of the first wife or after getting a divorce from the first wife

In such a situation, the children from the first marriage and those from the second marriage will be entitled to equal shares. Along with them, the second wife will also be entitled to a share of inequality with the others.

Situation 3: If the property been jointly titled between the husband and the first wife, making it a marital property;

After the second marriage, the joint property would remain under the ownership of the first wife after the death of the husband and the nominated beneficiaries. Notwithstanding the same, the children from the second marriage can claim a share in the property under the Hindu Succession Act.

To conclude, the property rights and share of the second wife are dependent on the legal status of her marriage.