Whether a second wife can claim maintenance in India turns almost entirely on one fact: was the husband's first marriage still subsisting when he married her. If the first marriage had already ended by death or by a decree of divorce, she is a wife in the fullest legal sense and her position is no different from any other wife. If it was subsisting, the second marriage is void under Hindu law, and second wife maintenance rights then depend on a genuinely contested line of Supreme Court authority in which concealment by the husband is usually the deciding factor. A third route, under the Protection of Women from Domestic Violence Act, 2005, is often the most practical of the lot.
This article works through the three situations, sets out the current Supreme Court position including two 2025 judgments that shifted the ground, and explains what the children get regardless of the mother's status.
Second Wife Maintenance Rights: Three Very Different Situations
The phrase "second wife" covers three legally distinct positions. Collapsing them is the commonest source of bad advice.
Situation one: the first marriage ended before the second. The first spouse died, or a decree of divorce was passed and any appeal was dealt with. The second marriage is valid and the wife has the full set of remedies: maintenance under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced section 125 of the Code of Criminal Procedure, 1973; maintenance pendente lite under section 24 and permanent alimony under section 25 of the Hindu Marriage Act, 1955; maintenance under the Hindu Adoptions and Maintenance Act, 1956; and monetary relief under the Domestic Violence Act.
Situation two: the first marriage was subsisting. Section 5(i) of the Hindu Marriage Act requires that neither party has a spouse living at the time of the marriage, and a marriage in breach of it is null and void under section 11. Section 17 makes the bigamous marriage void and attracts the bigamy offence, now section 82 of the Bharatiya Nyaya Sanhita, 2023: up to seven years, and up to ten years under section 82(2) where the earlier marriage was concealed. This is the difficult category.
Situation three: Muslim personal law. A Muslim man may lawfully have more than one wife, so a second wife is a legal wife and her remedies are intact.
Key takeaway. A void marriage is void whether or not anybody has obtained a decree declaring it so. But void does not automatically mean destitute. Indian courts have repeatedly separated the validity of the marriage from the obligation to maintain.
The three positions the phrase second wife covers, and what each means for a maintenance claim.
First marriage already ended
The first spouse died or a decree of divorce was passed. The second marriage is valid and the wife has the full set of maintenance remedies.
First marriage subsisting
Section 5(i) of the Hindu Marriage Act is breached, the marriage is null and void under section 11, and bigamy under section 82 BNS is attracted.
Muslim personal law
A Muslim man may lawfully have more than one wife, so the second wife is a legal wife and her maintenance remedies are intact.
The Strict View: Savitaben and the Legally Wedded Wife
The long-standing restrictive authority is Savitaben Somabhai Bhatiya v. State of Gujarat, decided by the Supreme Court on 10 March 2005 and reported at AIR 2005 SC 1809. The Court held that the expression "wife" in section 125 of the Code of Criminal Procedure refers only to a legally married wife, that a marriage with a person having a living spouse is null and void and not merely voidable, and that the woman's plea that she did not know about the earlier marriage was of no avail.
Two things about Savitaben are frequently forgotten. The Court did grant maintenance to the child and in fact enhanced it, and it acknowledged the harshness of the result while pointing to the legislature rather than to interpretation as the remedy.
The Purposive View: Concealment Changes the Answer
In Badshah v. Urmila Badshah Godse, decided on 18 October 2013, the Supreme Court upheld maintenance to a woman who had married a man who suppressed his subsisting first marriage. The reasoning is short and forceful: having duped her, the husband cannot be permitted to deny her maintenance by taking advantage of his own wrong. The Court distinguished the earlier line of authority on the footing that those cases concerned women who married knowing of the existing marriage.
The position moved again on 30 January 2025 in N. Usha Rani v. Moodududla Srinivas (2025 INSC 129), where the Supreme Court allowed maintenance to a woman whose own earlier marriage had not been formally dissolved. The Court took into account that the husband had full knowledge of her prior marriage, that she was in fact separated from her first husband, and that she received no maintenance from him. A husband, the Court observed in substance, should not enjoy the advantages of a de facto marriage without accepting its obligations.
These decisions do not overrule Savitaben. They sit alongside it, and each is a two-judge bench. What determines the outcome in a Magistrate's court is the evidence about who knew what and when. Where the woman can show she was deceived, her claim is materially stronger.
Common mistake. Filing only under section 144 of the BNSS and stopping there. In a void marriage the maintainability of that petition is the first thing the husband attacks. A parallel Domestic Violence Act application, where the test is a domestic relationship and not a valid marriage, gives a second and safer route to the same money.
Sukhdev Singh: Alimony Even When the Marriage Is Declared Void
On 12 February 2025, a three-judge bench of the Supreme Court in Sukhdev Singh v. Sukhbir Kaur (2025 INSC 197) settled a question that had divided the High Courts for years. The Court held that a spouse whose marriage has been declared void under section 11 of the Hindu Marriage Act is entitled to seek permanent alimony or maintenance under section 25, though whether the relief is actually granted always depends on the facts of the case and the conduct of the parties. The Court also held that even where a court forms a prima facie view that the marriage is void or voidable, it is not precluded from granting maintenance pendente lite under section 24 while the proceeding is pending.
That is consistent with Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, decided on 13 December 2004, where the Court said a bigamous marriage may be illegal but is not for that reason immoral, and that this cannot ground a denial of alimony to an economically dependent spouse.
Comparing the Routes Open to a Second Wife
| Route | Forum | Does a valid marriage have to be proved? | Practical note |
|---|---|---|---|
| Section 144 BNSS (earlier section 125 CrPC) | Magistrate of the first class | Yes on the strict view; the concealment cases soften this | Quickest statutory route; interim maintenance to be decided as far as possible within sixty days of service |
| Sections 24 and 25, Hindu Marriage Act, 1955 | Family Court, within a matrimonial proceeding | No, following Sukhdev Singh | Needs a pending or decided proceeding under the Act; section 24 also has a sixty-day proviso |
| Domestic Violence Act, 2005, sections 12, 20 and 23 | Magistrate | No, the test is a domestic relationship | Often the strongest route here; also gives residence and protection orders and ex parte interim relief |
| Section 18, Hindu Adoptions and Maintenance Act, 1956 | Civil court | Yes, the claimant must be a Hindu wife | Slower, but produces a civil decree that can be executed as one |
| Maintenance for the children | Magistrate under section 144 BNSS, or Family Court | No | Section 144(1)(b) covers a legitimate or illegitimate child |
What the Children Get, Whatever Happens to the Mother's Claim
This is the settled part of the law and it is worth stating plainly. Section 16 of the Hindu Marriage Act provides that notwithstanding that a marriage is null and void under section 11, any child of that marriage who would have been legitimate had the marriage been valid is legitimate, whether or not a decree of nullity has been granted. Section 144(1)(b) of the BNSS obliges a man of sufficient means to maintain his legitimate or illegitimate child who is unable to maintain itself. Even in Savitaben, where the wife's claim failed, the child's maintenance was enhanced.
What section 16 does not do is give the child the same inheritance position in every kind of property, because section 16(3) confines the child's rights to the property of the parents. That is a separate and more technical question best examined on the specific facts.
Whatever happens to the mother's claim, the children's position is the settled part of this law.
Section 16, legitimacy
A child of a marriage void under section 11 is legitimate if the child would have been legitimate had the marriage been valid, decree of nullity or not.
Section 144(1)(b), maintenance
The BNSS obliges a man of sufficient means to maintain his legitimate or illegitimate child who is unable to maintain itself. Even in Savitaben the child's maintenance was enhanced.
Section 16(3), the limit
Legitimacy does not carry the same inheritance position in every kind of property, because section 16(3) confines the child's rights to the property of the parents.
What the First Wife Can Do
The first wife is not a bystander. Three provisions matter to her. The Explanation to section 144(3) of the BNSS says that if a husband has contracted marriage with another woman or keeps a mistress, that is a just ground for his wife's refusal to live with him, which removes the usual defence that she left the matrimonial home without reason. Second, a second marriage during the subsistence of the first is a recognised form of cruelty and can ground a divorce petition. Third, bigamy is an offence under section 82 of the Bharatiya Nyaya Sanhita, 2023, though proving solemnisation of the second marriage with the essential ceremonies is evidentially demanding. Our note on bigamy law in India covers that proof problem.
How a Maintenance Claim Is Actually Run
- Collect proof of the relationship first: marriage photographs and video, invitation cards, temple or registrar records, shared-address documents, rent agreements, hospital records naming the husband, the children's school records, and messages in which he calls her his wife.
- Establish what the husband knew. If he concealed the earlier marriage, gather that evidence now, because the single fact often decides the maintainability argument.
- Assemble evidence of his means: salary slips, income tax returns, GST filings, property and vehicle records, bank statements and business registrations. Courts routinely require a sworn affidavit of assets and liabilities from both sides.
- File the application for interim maintenance along with the main petition, not later. Interim relief is what carries a client through the years of trial.
- Where the marriage is likely to be attacked as void, file a parallel Domestic Violence Act application so the claim does not rise or fall on the validity of the marriage alone.
- Ask for maintenance from the date of the application, not merely from the date of the order. Section 144(2) of the BNSS permits this if the court so directs.
- If an order is not paid, move for enforcement promptly. A warrant for recovery under section 144(3) has to be applied for within one year of the amount falling due.
- Keep the children's claim separately and clearly pleaded, so that it survives even if the adult claim is contested. Our note on maintenance under section 125 sets out the mechanics.
Deadline warning. Under section 144(3) of the BNSS, no warrant can be issued to recover arrears of maintenance unless the application to the court is made within one year of the date on which the amount became due. Women who allow years of arrears to accumulate and then approach the court frequently find the older instalments unrecoverable.
Indicative Timelines and Costs
These are broad indications of how such matters tend to run, not quotations and not predictions. Every case moves at the pace its own facts and its own court permit.
| Stage | Indicative timeline |
|---|---|
| Interim maintenance under section 144 BNSS or section 24 HMA | Sixty days from service is the statutory target; several months is common in practice |
| Interim relief under the Domestic Violence Act | Often fastest, since section 23 permits interim and ex parte orders |
| Final order in a contested section 144 BNSS petition | Commonly one to three years, depending on evidence and adjournments |
| Execution or recovery of arrears | Weeks to months once moved, subject to the one-year warrant rule |
On cost, a maintenance proceeding before a Magistrate sits at the lower end of litigation expense, while a contested Family Court alimony claim with cross-examination on assets is significantly higher. Legal aid is available through the District Legal Services Authority for those who qualify.
A Practitioner's Note
The hardest conversation in these matters is rarely about law. It is about documents. A woman who has lived as a wife for a decade often has no marriage certificate, no bank account of her own and no idea what her husband earns, because none of that was ever hers to keep. What she does have, almost always, is a photograph album, a school admission form, a hospital discharge summary and a WhatsApp history in which the man addresses her as his wife and discusses household money. Those ordinary papers do the work a certificate would have done, and the cases that go badly are the ones where nobody collected them before the relationship broke down. Anyone considering a second marriage while an earlier one is unresolved should read our note on second marriage rights in India and the overview on our family and divorce law page.
Related guides and where to get help
- Maintenance for a Wife Married as a Minor: Rights
- Wife Maintenance Rights: Can a Teen Marriage Be Denied?
- Can a Working Wife Claim Maintenance in India?
Frequently Asked Questions
Is a second marriage valid in India if the first is still subsisting?
Not under Hindu law. Section 5(i) of the Hindu Marriage Act requires that neither party has a spouse living, and a marriage in breach of it is null and void under section 11. Under Muslim personal law a man may have more than one wife, so the question does not arise in the same way.
Can a second wife get maintenance under section 144 of the BNSS?
Sometimes. Savitaben held that "wife" means a legally wedded wife. Badshah allowed the claim where the husband had concealed his first marriage, and N. Usha Rani in January 2025 allowed it on its own facts. Concealment by the husband is usually the decisive factor.
Can she claim permanent alimony if the marriage is declared void?
Yes, following Sukhdev Singh v. Sukhbir Kaur (2025 INSC 197), a spouse whose marriage is declared void under section 11 may seek permanent alimony under section 25 of the Hindu Marriage Act, although the grant remains discretionary and turns on the facts and the conduct of the parties.
Can a second wife use the Domestic Violence Act?
The Act applies to a woman in a domestic relationship, which under section 2(f) includes a relationship in the nature of marriage. A valid marriage is not a precondition, which is precisely why this route is often used where the marriage is vulnerable to challenge.
Do the children of a void second marriage get maintenance and inheritance?
They are entitled to maintenance under section 144(1)(b) of the BNSS regardless of the parents' marital status, and section 16 of the Hindu Marriage Act makes them legitimate. Their inheritance position is narrower, because section 16(3) confines their rights to the property of the parents.
What can the first wife do when her husband takes a second wife?
She can rely on the Explanation to section 144(3) of the BNSS, which makes a second marriage or keeping a mistress a just ground for her refusal to live with him, seek divorce on the ground of cruelty, and consider a bigamy complaint under section 82 of the Bharatiya Nyaya Sanhita, 2023.
Does a Muslim second wife have maintenance rights?
Yes. She is a legal wife, and in Mohd Abdul Samad v. State of Telangana, decided on 10 July 2024, the Supreme Court confirmed that the secular maintenance remedy is available to a Muslim woman independently of personal law.
Does maintenance start from the date of the order or the date of the application?
Section 144(2) of the BNSS allows the court to order payment from the date of the application. It must be specifically asked for, and a claim that omits it can lose years of arrears.
This note sets out the general position under Indian law as at August 2026 and is not legal advice. The authorities pull in different directions and every case turns on its own facts and evidence.
