Feb 222016
 

Details about second wife Pension Entitlement

It cannot be denied that whether the second wife is completely entitled or not to claim pension, has been a major issue of conflict among different individuals from a long period of time. But one thing is definite that even if the first marriage is completely dissolved or not, the second wife has the right to claim pension. There are a lot of individuals who have second marriages and the second wife’s claim to avail the pension of her husband has been neglected. In this scenario there are a lot of factors that need to be considered.

For instance, there are people who are going through a separation period but their divorce has not been confirmed yet, the person opts for marrying another woman. In such circumstance, both the wives are entitled to the pension of their husband. On the other hand, if a person marries another woman after the confirmed divorce from his first wife, then only the second wife shall be the claimant of his pension. And in such situation, the first wife cannot claim any of her husband’s pensions.

Details about second wife Pension Entitlement

The legality of second marriage

The scenario is definitely complicated but one thing is for sure that the second wife has a right to claim for the husband’s pensions whether there has been a divorce confirmation or not. And also, even though the couple is not formally married, if they are living together, then the woman shall have right to claim for her husband’s pension. Another important factor that needs to be mentioned is it is illegal to make a second marriage during the existence of a first marriage. And this is the reason; a relationship that arrives from second marriage in presence of a first marriage is not a valid one. So the legal aspect is very clear on this point, but the social aspect varies.

Hindu Marriage Act

One of the major conditions of Hindu Marriage Act 1955 is none of the party is having a living spouse at the same time. Before this law was introduced, there was a prohibition against women that she cannot marry another person while her first husband is still living. But there was no such law against men until some of the states started the prevention of Bigamous marriage and started monogamy among Hindus.

Within the year 1955, the Hindu Second marriage in existence of a first marriage became null and void. This led to a huge social stigma and the sense of being cheated without the existence of a proper legal relationship was really depressing for a woman. But even though the second wife did not attain any social recognition, the law had options for the second wife to attain the maintenance. And in absence of any transparent regulation, the chances of second wife to claim certain rights depended on judge’s discretion.

Historical perspective

Monogamy is one of the rules of Vedic time, but at the same time polygamy also existed. But it was considered that the first wife shall be “THE Wife” in fullest sense. And only when the first wife was diseased, vicious or barren, then the second marriage was considered as valid. But as a regulation, the first wife should have precedence over any other wives and her first born child would be preferred over his half-brothers. During the British rule, it was established that Hindu male would be allowed to have multiple marriages without the consent or justification of his first wife.

Changing times:

Times have changed to a great extent and the Supreme Court has notified that a second marriage shall not be declared as null and void. And the second wife shall be completely entitled to pensions even if the first marriage is not dissolved completely and the first wife cannot prevent or object it. But there are certain sections and laws where the first wife can file complaints. They are as follows;

Criminal issues:

If the first wife has been aggrieved by the second marriage, then she can file a complaint. There is a section IPC 494 that clearly states, making a second marriage, in presence of a spouse, without applying for a divorce or separation, are not legal. Thus, this is a punishable offense which can lead to an imprisonment of 7 years. And under this section if such marriage takes place, then the second wife shall not be entitled to pension. So, in simple terms, if bigamy is made, concealing the fact of a previous marriage, it is a punishable offense and no pension claims can be made by the second wife.

Maintenance Issues:

This is another important factor that has been mentioned within section 125. The second wife is liable to claim a certain amount of maintenance and pension from her husband and that can be claimed irrespective of any religion she belongs to. And to be eligible for claim, it is essential to verify whether the husband has treated her as his wife, the Voter ID card where she has been referred a wife and the joint bank account or even any police record where it is stated that she is his wife.

Hindu personal law:

The Bigamy is considered as an offense not only within criminal law, but also under Hindu Marriage Act section 17, a second marriage in presence of a living spouse shall be considered as void. Another option for the second wife is getting the marriage annulled within section 11 if the husband did not opt for filing a divorce or separation before second marriage.

Interim maintenance:

Though the law for interim maintenance does not specifically mention about the maintenance and pension offered to the second wife. This section has been offered a very wide interpretation by the courts. This has helped the case of second wives to bring into justice. Thus, the second wife is liable to claim for interim maintenance and pension within the section 24 of HMA.

Permanent Alimony:

The case for permanent alimony has been represented differently for protecting the rights of second wife. Even after the second marriage is declared null and void, the second wife can claim for maintenance and pension. In simple terms, a Hindu woman is entitled to maintenance if her husband contracted another marriage.

The conclusion

It cannot be denied that a woman has to undergo immense depression due to the social stigma attached with being a second wife of an individual. The absence of any form of social recognition and the pain of being cheated becomes really stressful for the woman. Even in our country there is not much recognition offered to a second wife but, with the different forms of judicial interpretation she definitely has options of claiming maintenance and pension from her husband. In such circumstances, it is essential for the law makers to form clear provisions for protecting the rights of these women who are duped into second marriages.

A brief overview of the different claims and issues of a second marriage

SL NO Important factors Brief Description
1. Criminal issues In case the first wife has been aggrieved due to the second marriage, then it shall be a criminal offense according to section IPC 494. And within such circumstances, the second wife shall not be allowed with pension or maintenance. A second marriage, without applying for divorce or separation, concealing first marriage is punishable.
2. Maintenance issues The second wife can claim for maintenance, irrespective of any religion. Voter ID, Joint bank account and social recognition is important factor as eligibility criteria for claiming maintenance.
3. Hindu Marriage Act 1955 No party can have a living spouse during the time of second marriage.
4. Hindu Personal Law A second marriage in presence of a living spouse is solely void and it is also a criminal offense.
5. Interim Maintenance The second wife can claim for interim maintenance and pension within section 24 HMA.
6. Permanent Alimony Although, during the presence of a living spouse the second marriage is declared null and void, the second wife can claim for pension and maintenance.

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