S.N. Dwivedi, J.
1. Shrimati Kalawati instituted a suit against her husband, Ratanchand, for past and future maintenance on the allegation that he has married again. He admitted his second marriage with Shrimati Chameli in 1935 but disclaimed his liability. The trial Court decreed the claim only for future maintenance at Rs. 25 per mensem in view of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946.
Ratanchand also lost in the lower appellate Court, and he then filed a second appeal in this Court. His principal submission that the plaintiff could not get the benefit of the said Act because he had remarried before its commencement found favour with the learned Single Judge, who dismissed the plaintiff's suit.
2. Aggrieved by the judgment of the learned Judge the plaintiff preferred the present appeal on the ground that the learned Judge's view was erroneous. Learned counsel for the plaintiff has however asked us to permit him to abandon that ground of attack, and raise a new point not taken in the memorandum of the appeal. He submits that the plaintiff is now entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act (Act LXXVIII of 1956), which came in force on 22-12-1956, and that her suit for future maintenance should therefore be decreed at Rs. 25 per month from that date onward.
We have permitted him to rely on the new statute, since it came into existence after the filing of the special appeal. The rule that the court of appeal may consider a supervening statute in a proper case in now firmly established (See G. T. M. Kotturuswami v. Setra Veeravva, AIR 1959 SC 577), and learned counsel for the defendant has indeed, and we think very properly, not questioned our power to do so.
3. Section 18 of the 1956 statute, in so far as it is pertinent in this appeal, is as under :
'18 (1). Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claims to maintenance,
(d) if he has any other wife living.'
4. It is admitted that Shrimati Chameli, the second wife of the defendant, is alive. The plain-tiff is therefore prima facie entitled to maintenance under the section from the date of the commencement of the Act, (See Sarbo Gopain v. Anta La! Gope, AIR 1958 Pat 613). Learned counsel for the defendant however argues that in view of the word 'living' clause (d) would be attracted only if the other wife were living with the husband, and that there is no evidence in this case to prove that Shrimati Chameli has been or is living with him.
5. Several considerations lead us to the conclusion that this argument is not well-founded. The Hindu Adoptions and Maintenance Act, 1956, repealed the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, Section 2 of which provided that a Hindu married woman shall be entitled to separate residence and maintenance from her husband, inter alia, 'if he marries again''.
It was held in a number of cases, which have been referred to by Gurtu, J., that this provision did not entitle the wife to a separate residence and maintenance if the husband's subsequent marriage had been solemnised before the Act came into force. It was no doubt to extend the scope of the benefit intended to be conferred upon a Hindu wife that in Section 18 of the 1956 Act, in lieu of the phrase 'if he marries again' the phrase 'if he has any other wife living' has been substituted. Had Parliament intended that the 'other wife' must be a wife living with the husband, we can see no sufficient reason why it should not have said so.
6. Sub-section (2) of Section 13 of the Hindu Marriage Act, 1955, enables a wife who had married before the commencement of that Act to obtain a divorce on the ground that any other wife of the husband also married before the commencement of the Act was alive at the time of the presentation of the petition. If the word 'living' in the Hindu Adoptions and Maintenance Act means 'living with the husband'', then the curious result will follow that in the case of marriages to which Section. 13(2) of the Hindu Marriage Act applies the taking of another wife will entitle the first wife to a divorce but may not entitle her to maintenance and separate residence.
7. A further consequence will follow from the adoption of the contraction which the appellant seeks to place upon Section 18 of the Act now under consideration. If a husband deserts his wife and marries again, then the first wife will be deprived of her right to maintenance if the other wife, for any reason, ceases to live with her husband. We cannot think this to have been the intention of the legislature. In our opinion the word living' in Clause (d) of Section 18(2) of the Hindu Adoptions and Maintenance Act, 1956, means 'alive' and not 'living with him'.
8. No other point has been pressed. In the result the plaintiff is entitled to a decree for maintenance at Rs. 25 per mensem from the 22-12-1956, onwards.
9. We therefore allow this appeal and decree the plaintiff's claim for maintenance at Rs. 25 per mensem from the 22-12-1956. The rest of the suit is dismissed. The court-fee shall be realised from the plaintiff to the extent of her failure and from the defendant to the extent of her success. The parties shall bear their own costs throughout. A copy of the decree shall, forthwith be forwarded to the Collector, Etab, as required by Order XXXIII, Rule 14, C. P. C. The court-fee payable by the plaintiff shall be a first charge on the decretal amount.