Share of second wife in husband's earnings when un-divorced first wife predeceased

Hi,

Firstly, lets analyse the legality of Mr. Dixit’s marriage:

Mr. Dixit in 1965 committed Bigamy by marrying Mrs. Laxmi the younger sister of Mr. Dixit’s first wife Mrs. Sheetal, which makes the second marriage of Mr. Dixit null and void and gives no right to the second wife to make any claim on any of the assets belonging to Mr. Dixit as according to Section 5 clause 1 of The Hindu Marriage Act, 1955 it provides conditions for a Hindu marriage that neither party shall have a spouse living at the time of the marriage. 

Situations when the second marriage of Mr. Dixit would be legitimate:

A)      If Mr. Dixit divorced his first wife Mrs. Sheela before marrying her younger sister Mrs. Laxmi

B)      If Mr. Dixit remarried after the death of Mrs. Sheela

Now, lets analyse the legitimacy of Mr. Dixit’s children:

Mr. Dixit had a son with first wife Mrs. Sheetal and two daughters with second wife Mrs. Laxmi. The Children born due to second marriage are legitimate under section 16 of The Hindu Marriage Act, 1955 which means that regardless of the second marriage being null and void the children born from such marriage will be considered as his legal heirs just like the children born out of the first marriage.

Share of children born out of second marriage:

A)      If their father has prepared a will before dying then they will get their share accordingly.

B)      If there is no will then they will get equal share just like the legal heirs from the first marriage are entitled to get.

Some Reference case Laws are as follows:

A)      Sarla Mudgal v. Union of India, 10th May 1995

In this case the husband remarried to another female by imbracing Islam, while first marriage with Hindu wife is not dissolved. The court held that a Hindu male or female can marry again only when their first marriage is dissolved by a decree divorce.

B)      Prakash v. Phulavati, 16th October 2016

Since Mrs. Laxmi is the second wife of Mr. Dixit their marriage is void as per section 5 of The Hindu Marriage Act 1955 and therefore she has no right to claim over the property of Mr. Dixit. Since Mr. Dixit has two daughters with Mrs. Laxmi and Mr. Dixit died after the amendment of The Hindu Succession Act 2005, if the daughters are born on or after 9th September 2005 they will be entitled to claim equal share as legal heirs in their father’s property if not then neither children nor the second wife are eligible to claim for Mr. Dixit’s Property and belongings.

Hope this helps.

Regards,

Parth Chawla

Very well analysed, opined and advised by Mr. Parth Chawla, I endorse and appreciate his acumen.

"B)      Prakash v. Phulavati, 16th October 2016   Since Mrs. Laxmi is the second wife of Mr. Dixit their marriage is void as per section 5 of The Hindu Marriage Act 1955 and therefore she has no right to claim over the property of Mr. Dixit. Since Mr. Dixit has two daughters with Mrs. Laxmi and Mr. Dixit died after the amendment of The Hindu Succession Act 2005, if the daughters are born on or after 9th September 2005 they will be entitled to claim equal share as legal heirs in their father’s property if not then neither children nor the second wife are eligible to claim for Mr. Dixit’s Property and belongings."

     Opinion, as above, is of no application in the given facts as the property held by Mr. Dixit had been his personal property and not ancestral.

First wife died in 2002,during her life time she didn't challenged her husband's 2nd marriage in competent court of law or obtained any declaration or decree against it which is document to show  that marriage is void, her husband died in 2008,the gap is 6years,, if first wife son challenged it at that period the husband was witnessing her as his wife and after first wifes death  all records like ration card, address, adhar card  etc mentions or shows her as his wife, now the problem is share of second wife, to show that first wifes son should have any declaration or decree on marriage obtained by her mother who  was aggrievied party. Act is act only it is enforceable when we have obtained any declaration or decree or order from competent Court, if act says void ab initio the court has to tell it and pass decree as void. Advocates can tell it in their office to clients but it becomes enforceable when court passes decree. Each void marriage is considered individual and separate decree shud be obtained by aggrievied parties.

 Section 5 of Hindu Marriage Act holds the bigamous marriage to be void, not voidable. Hence the relationship cannot attain validity or legality just because the first wife and her children had not sought any declaration from the Court.

I am not telling about section 5 i am telling about section 11of void marriage  in hindu marriage act which clearly states  declarate decree of nullity be obtained by  competent court through petition by aggrievied party.please refer it with thanks.

I still endorse the views of expert Mr

 Shashi Dhara. 

It also depends on the application of judicial mind considering various underlying facts and background including customary prevalence. 

Dear Sheetal Dixit,

Thank you for your query! I am Aadil and I will try to answer your question.

The short answer to your question is NO. The second wife does not have any right towards said property, but her children do.

Bigamy in India was banned by the Hindu Marriage Act, 1955. As per Sections 11 and 17 of the same, if either of the parties to a marriage had a living spouse on the date that it took place, then such marriage will be considered void.

Also, as per Section 16 of the same act, any child that would have been considered legitimate if the marriage was valid, shall be considered a legitimate child irrespective of the void status of the said marriage.

Therefore, the father’s marriage with the second wife shall be considered void by law, but the children they had in this marriage shall be considered legitimate.

Since the father died intestate, as per Section 6 of the Hindu Succession Act, 1956, the son, daughter and widow of an intestate male shall inherit his property. Since the second marriage is not valid, the second wife may lose their claim towards said property, but their children from the said marriage shall still have a claim towards this property.

I hope this helps. Thank you for your time and patience!

Regards,

Aadil