Polygamy was allowed in India in ancient times, but presently under the Act, no person can marry till his/her spouse is living.
Marriage for a second time among Hindus is legally prohibited in India if the spouse of anyone party to the second marriage is alive. So, there can be no legitimate relationship arising out of an act which is illegal from the very beginning. Polygamy was allowed in India in ancient times, but presently under the Act, no person can marry till his/her spouse is living.
Unless and until the first wife is dead or there has been a divorce, the second marriage is invalid. Any marriage for the second time during the subsistence of the first marriage is illegal in India. Under the old law, the bar to marry a second time applied only to the women. Men, on the other hand, could marry as many times as they wanted to. But after the enactment of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'), it is now settled that under section 5 of the Act, “at the time of marriage, none of the parties should have a living spouse”.
According to the Hindu Adoption and Maintenance Act, 1956, and the Hindu Succession Act, 1956, the wife gets absolute right over her husband’s property along with any children of them. Her right in her husband's property will not devolve if she remarries after her husband's death in accordance with the provisions of the Act.
To provide for the rights given to the second wife, there is a need to examine the legitimacy of the second marriage. In case the second marriage takes place after the death of the first wife or after the husband divorced his first wife, then, if the second marriage is solemnized according to the customary rites. In accordance with the provisions of the Act, it is a valid and legal marriage, and the second wife enjoys similar rights and privileges as the first wife.
Apart from the legal consequences, the second wife, if the marriage is not legally valid, suffers socially the most as well. The society labels her instead of the husband who has fraudulently married her. Since she does not have any legal remedy, she has to suffer silently.
Though this is not a statutory right, the courts in present times have used its discretionary power to give relief to a woman who is already suffering a lot. In Badshah Vs. Urmila Badshah Godse, the Supreme Court ordered the husband to give maintenance to the second wife, who was suffering without any fault of her own. The Apex Court observed, “We are dealing with a situation where the marriage between the parties has been proved. However, the petitioner was already married. But he duped the respondent by suppressing the factum of alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his wrong." Justice A.K.Sikri in a while giving reasons of the judgment said, "At least to claim maintenance under Section 125 of the Cr.P.C. (Code of Criminal Procedure), such a woman is to be treated as the legally wedded wife.” So, it is nowadays a common thing that a second wife does get maintenance from the fraudulent husband.
In recent times, the courts also provide maintenance, interim and permanent, to the second wife by not only interpreting section 125 of the Cr.P.C. but also by interpreting Section 24 and 25 of the Act. Though these sections do not specifically mention the rights of the second wife to get maintenance, the courts have been providing maintenance by broadly interpreting the provisions.
The Hon'ble Bombay High Court, in the famous case of Rajesh Bai Vs. Shanta Bai ordered that Shanta Bai, who was the second wife, was entitled to get an allowance.
Under various circumstances, the right to property of the second wife differs. Followings are the various circumstances.
Where the marriage occurs after divorcing the first wife, the marriage is legally valid. In such a scenario, if the husband dies intestate, then his property will devolve upon the first wife, children from first wife, his second wife, children out of the second marriage. All of the previously mentioned persons will get equal shares amongst them.
When a person remarries without ending his previous marriage legally, the second marriage amounts to an invalid and illegitimate relationship. In such a case, after the death of the man, intestate, the property will be divided between his first wife, children born out of the first marriage and children born out of the second marriage. But the second wife will get nothing as the second marriage is null and void.
Where the husband remarries after the death of his previous wife, it will be a valid marriage and, in this situation, after he dies intestate, the property will be equally divided amongst the children from the first marriage and second wife and children born out of the second marriage.
Being a second wife is not easy when society looks down upon you. There is no such legal remedy also to the woman, but with the recent judgments and precedents, it is now settled that the woman will get, in most of the cases, maintenance as a right.
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