Legal Information / Articles


Law is based on the social constructs governing society, and the institution of marriage is universally accepted as an essential part of preserving the family structure and protecting healthy nurturing environments. Marriage holds such an essential place because human beings biologically possess a need for companionship, and also because the home created by two individuals through the union of marriage is considered a stable and healthy environment for raising children.

THE RIGHT TO MARRIAGE IS A FUNDAMENTAL RIGHT All across the globe, the right to marriage is considered an essential right of every individual. For instance, in the United States of America, their Supreme Court has declared the rights of marriage, procreation, contraception, family relationships, child-rearing and education to be indefeasible fragments of the substantive right to privacy. [See Meyer v. Nebraska, 262 US 390 (1923); Pierce v. Society of Sisters, 268 US 510 (1925); Prince v. Massachusetts, 321 US 158 (1944)].

An English Court in Mundell v. Names [(2019) 4 WLR 139] held:

“The right to form a marriage is a fundamental right and has been so for centuries. If one was to draw up a hierarchy of human rights, one would have the right to enter into a marriage and found a family as being near the top of the list because the right to form a marriage has been in play in our society since the very dawn of time. So important is it that it has made its way into the European Convention for the Protection of Human Rights and Fundamental Freedoms, article 12 of which states: ‘Men and women of marriageable age have the right to marry and to found a family according to national laws governing the exercise of this right’.”

The courts of India have considered the right to marriage as a fundamental right under the broad definition of right to life under Article 21 of the Constitution of India. In a landmark decision, the Supreme Court of India has held that the India is a free, democratic country and any person of majority can enter into a valid marriage with any person of their choice, and should not face any harassment from others for their decision. [Lata Singh v. State of U.P., (2006) 5 SCC 475].

Thus, the Courts of India, as well as across the world, recognize and protect the sanctity of all valid marriages. A subsequent marriage, so long as legally valid, will be treated at par with the first marriage in the eyes of law and given all protections.

PROTECTION OF RIGHTS IN A SECOND MARRIAGE It would be a misconception to think that a court of law will view any individual’s rights differently simply because they are marrying a second time. A person does not lose their rights by simply entering into a second marriage. Some common rights people that one may worry will get affected upon engaging in a second marriage are discussed below:

Property Rights: The rights over property that are in question are usually already addressed in divorce settlements and accordingly sorted with the consent of both parties. An overview of the rights of a person with respect to the kinds of property they own is as follows:

Ancestral Property: The rights of a person in their ancestral property (from their own family, not that of the person they were previously married to) are completely unaffected by a second marriage. In a case, the Supreme Court had even held that a widower would have rights in her deceased husband’s ancestral property even after she remarried, on account of being the mother of the deceased husband’s child [See Kasturi Devi v. Deputy Director of Consolidation, 1977 (2) SCR 25].

Joint Property: Unless their was a pre-defined contract allocating percentages of shares in properties acquired together by the couple in the first marriage, a person is still entitled to an equal share in any joint property acquired during the previous marriage, even if they remarry.

Gifts: Unless a gift of any nature (movable or immovable property) was given to a person with condition that it will only be valid for the subsistence of the marriage, that gift will continue to be the property of that person even after they remarry.

Property Rights of the Child: A common concern is whether a child would lose his rights over his ancestral property from the other parent, if the parent in whose custody the child is, remarries. This is not the case. A child’s right over his/her own property is protected, regardless of whether the parents of the child remarry.

Child Custody: The deciding principle in all child custody cases is always “best interest of the child” [R. D. Upadhyay v. State of Andhra Pradesh, (2007) 15 SCC 337]. Usually, the mother is considered most ideal for nurturing and holding custody of the child, particularly young children. Simply remarrying will not make a parent less likely to obtain or maintain custody. In fact, some courts have held that a stable set-up with both caregivers is an ideal home for a child to grow up in. Thus, starting a new family is not necessarily seen by courts in a negative light. The Supreme Court has expressly held that remarriage of the mother is no reason to deny her custody of the child, and the court must simply act in the best interest of the child [Lekha v. P. Anil Kumar, (2006) 13 SCC 555].

So long as a parent is able to show that they are providing the best possible environment for a child, the custody case will not be impacted.

Maintenance: If a spouse has been obtaining maintenance from their partner from a previous marriage, the right to maintenance of an individual ends upon entering a second marriage. However, if the spouse from the previous marriage is providing maintenance for both the former partner, and their child, the obligation of the biological parent to pay maintenance for their child will not end simply because the parent who has custody of the child has remarried.

Sanctity of Marriage: The law preserves and protects any subsequent marriage with the same laws and standards as the first one, and there will be no difference in terms of the validity and sanctity of a subsequent marriage.

Thus, one’s individual rights do not end upon entering into a second marriage. Rights emerging out of a previous marriage may be altered to some extent.

An examination of the matrimonial laws, and the sanctity held by the institution of marriage, would show that these are welfare legislations that permit people to take second chances in an attempt to lead more fulfilling lives. Being a fundamental right, remarriage is respected and protected by the law.

Shiv Mangal Sharma and Sukanya Singh

Advocate Supreme Court