Legal status of second wife
The section 11 of the Hindu Marriage Act of 1955 states that any marriage
between two Hindus is null and void if it contravenes any one of the conditions
specified in the clauses (i), (iv) and (v) of section 5.
In the case of Bai Jivatbai Jethmal vs Milkiram Deepchand And Anr
defendant had a spouse living at the time of second marriage. The court in this
case held that the second marriage is declared null and void as per the section
11 of the Hindu Marriage Act of 1955 because the first marriage was not
dissolved at the time of the second marriage.
The Section 13 of the Hindu Marriage Act of 1955 states that any marriage
solemnized before or after the commencement of the act can be dissolved by the
decree of divorce. The section also contains the grounds by which divorce decree
can be granted.
However, in the case of a void marriage, the marriage in itself is void and
therefore, there is no need to take the divorce decree as from the starting only
the marriage is considered to be null and void as per law.
In the case of R. v. Dolman
 the defendant who was the wife in this case
had a spouse living at the time of second marriage. When the husband got to know
that he filed for divorce under section 13 of the Hindu Marriage Act of 1955 on
the grounds of cruelty. The court in this case held that the marriage itself is
null and void hence there is no need to pass the decree of divorce.
In the case of Lily Thomas vs. Union of India
, the husband converted to
another religion in order to have a second wife even when the first marriage was
not dissolved. The court in this case held that under the Hindu Marriage Act, a
bigamous marriage is prohibited and has been constituted as an offence under
Section 17 of the Act therefore any marriage solemnized by the husband during
the subsistence of the first marriage would be an offence triable under Section
17 of the Hindu Marriage Act read with Section 494 IPC.
Maintenance of second wife under the Hindu Adoptions and Maintenance Act
The section 18 of the Hindu Adoption and Maintenance Act of 1956 states that a
Hindu wife shall be entitled to be maintained by her husband during her life
time. The subsection (2) (d) of the section 18 states that a Hindu wife is
entitled to live separately from her husband without forfeiting her claim to
maintenance if he has any other wife living.
Here the term any other wife living states that the act is not only
considering the first wife but also the rights of the second wife can be
It is agreed that according to Hindu personal Laws, bigamy or polygamy is
treated as void. However, the second marriage is a common practice in our
country. Also, the rights of the second wife are not properly protected under
the law. Therefore, the main question which comes into picture is that is the
second wife entitled to claim maintenance as per the Hindu Adoptions and
Maintenance Act of 1956.
In the case of Narinder Pal Kaur Chawla v. Manjeet Singh Chawla
 the husband
did not disclose the fact that he is already married and he married 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 the section 18 of the Hindu Adoptions and
Maintenance act of 1956 because she was not knowing 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.
Also, in the case of Badshah v. Urmila Badshah Godse
, the court stated that
the husband is bound to maintain the second wife and the wife is to be treated
as a legally wedded wife because firstly, it was the husband who did not
disclosed that he was already married and secondly, they both were living as
husband and wife.
But in the case of Mangala Bhivaji Lad v/s Dhondiba Rambhau Aher the court
stated that as per sections 5 (i) and 11 of the Hindu Marriage Act, the second
marriage is to be treated as void and therefore, the husband is not bound to
maintain the second wife as she is not the legally wedded wife.
From the above cases it is observed that there is absence of the clear provision
regarding the maintenance of the second wife as per the Hindu Adoptions and
Maintenance Act of 1956 therefore, the claim for maintenance depends on the
discretion of the judges.
Due to the Absence of clear law there is loophole in the Indian Law. These are
easily exploited by the husbands to defend themselves. Therefore, there is a
need to make strict and clear laws for second wife so that her rights are also
If the petition would be filed under section 125 of CRPC then the second
wife would definitely get the maintenance
In the case of Badshah v. Urmila Badshah Godse and Ors
 the petitioner and
the Respondent married as per the Hindu rites and customs. After the marriage,
the couple stated living together. But one day a lady came and claimed her to be
the wife of the petitioner.
The petitioner mentally tortured the respondent
therefore, she left the matrimonial home. The respondent then claimed
maintenance from the petitioner. The main question before the court was that is
the respondent entitled to get maintenance as per section 125 of CRPC even when
the marriage between them was void. However, the petitioner argued that the
in Section 125 means only a legally-wedded wife and the
section 5 of the Hindu Marriage Act of 1955, prohibits second marriage during
the subsistence of the first marriage so respondent in this case cannot claim
However, the Supreme court in this case held that the marriage
between the respondent and the petitioner was solemnized as per the Hindu rites
and customs. In this case, the petitioner had kept the respondent ie. He did not
disclose the fact that he is already married. Thus, a false representation was
given to the respondent by the petitioner, therefore the wife is entitled to get
maintenance as per the section 125 of CRPC.
Also, in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit and
 the court stated that if the claimant proves that she and the respondent
used to live together as husband and wife. Then in that case, the court can
presume that they are legally wedded to each other.
Even in the case of, Chanmuniya v. Virendra Kumar Singh Kushwaha and
 The court interpreted the meaning of expression 'wife' and stated that a
broad and expansive interpretation should be given to the term "wife" which
would also include even those cases where man and woman are living for a long
period of time as husband and wife.
In the case of In Rameshchandra Daga v. Rameshwari Daga
 the court said
that it is agreed that as per the Hindu Marriage Act of 1955, the second
marriage is void and such marriages are illegal as per the provisions of the
Act, but still they are not 'immoral' and hence a financially dependent woman
cannot be denied maintenance on this ground.
Therefore, it is well established that under the section 125 of CRPC, the second
wife is also entitled to get maintenance if she is not in a position to maintain
According to me, the rights of the second wife who is unaware of the fact that
the husband was already married should be protected by making amendment in the
Hindu Adoptions and Maintenance Act of 1956. As of now there is no such clarity
in the act which specifies that the right of the second wife is protected and
she is entitled to get maintenance. Though, the section 18(2) (d) states that
wife can get maintenance if the husband has any other wife living but by reading
the section it is interpreted that only the first wife would get maintenance and
not the second one.
Even the section 125 of CRPC is not talking about the rights of the second wife.
As per the section 125 (1) (a), any person having sufficient means to
maintain his wife who is unable to maintain herself, is bound to maintain her.
In the explanation in clause (b) of section 125 the meaning of the word wife is
given. It is stated that wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.
Therefore, there is a need for amendment of section 125 of CRPC. This section
should be widened and even the rights of the wife who is kept in dark by the
husband because of the non- disclosure of the first marriage should also be
It is agreed that in the Supreme Court Judgement in the case of Badshah v.
Urmila Badshah Godse and Ors
it was stated that under section 125 only the
second wife should be entitled to get maintenance but that was the
interpretation of the court. The section is nowhere stating nor it is clear that
even the second wife should get maintenance. Therefore, the section 125 of CRPC
should be amended for protecting the rights of the second wife.
- 1961 CriLJ 469
- 949-1 All E R 813
- Civil 2606 of 2004
- (2014) 1 SCC 188.
- APPEAL NO. 117 OF 2006
- (2014) 1 SCC 188
- (1999) 7 SCC 675
- (2011) 1 SCC 141
- AIR 2005 SC 422
Award Winning Article Is Written By: Ms.Sameeksha Vaishnava
Authentication No: FB33031780560-22-0221