The words "if he marries again" in S. 2(4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, refer to a future marriage, i.e., marriage after the Act.

ORDER OF REFERENCE KRISHNASWAMI NAYUDU, J. :- This appeal arises out of a suit for separate maintenance and residence by a Hindu wife against her husband, for herself, and fat her minor daughters.

2. The first plaintiff, the wife, was married to the defendant 20 years prior to the suit. The 2nd and 3rd plaintiffs are two of the surviving daughters of the marriage. The plaintiffs case is that on account of cruelty on the part of the husband, the first plaintiff was obliged to leave him. The suit for maintenance was resisted by the husband on the ground that she was living away from him without sufficient cause and that he was prepared to take her back and allow her to live with him. The defendant married a second wife, as the first plaintiff did not bear him a male child, which marriage was, according to him, with the approval of the first plaintiff.

3. The learned Subordinate Judge did not consider it necessary to examine the allegations of cruelty in view of the passing of the Hindu Married Womens Right to Separate Residence and Maintenance Act 19 of 1946. A contention was raised on behalf of the defendant that the said Act was not retrospective in character and would not afford the first plaintiff, a ground to claim separate maintenance, as admittedly in this case the marriage took place long before the passing of the Act. But the learned Judge following the decision of Viswanatha Sastri, J. in - Lakshmiammal v. Narayanaswami Naicker, 1950 Mad 321 (AIR V 37) (A), who took the view that the Act was retrospective in character, granted maintenance.

4. In the present appeal, the correctness of the view taken by Viswanatha Sastri, J. is canvassed. In so far as our High Court is concerned, Raghava Rao, J. in - S.A. No. 556 of 1947 (Mad) (B), followed Viswanatha Sastri, J. and held that the Act was retrospective. One of us (Krishnaswami Nayudu, J.) had occasion to consider this question in - Sidda Setty v. Muniamma, 1953 Mad 712 (AIR V 40) (C), though, that question did not directly arise for consideration in that case, and a contrary view was taken.

5. The decision of the question turns upon the interpretation of the words "if he marries again" in S. 2(4) of Act 19 of 1946. Viswanatha Sastri, J. took the view that the words "marries again" are merely descriptive of the position of the husband as a twice married man at the date when the wifes claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation.

In - Lakshmibai v. Wamanrao, 1953 Bom, 342 (AIR V 40) (D), a Bench of the Bombay High Court consisting of Rajadhyaksha and Vyas, JJ. before whom the decision in 1960 Mad 321 (AIR V 37) (A), was cited, did not accept the view that the Act was retrospective and held that the words "if he marries again" must be interpreted as meaning "if he marries again after the Act comes into force", and any earlier marriage, of the husband prior to the coming into force of the Act will not confer upon the wife the right to claim separate residence and maintenance.

The learned Judges agreed with the view of Hidayatullah and R. Kaushalendra Rao, JJ. in - Sukhiribai v. Pokkal Singh, i960 Nag 33 (AIR V 37) (E), that the Act could not be called a "declaratory Act" in the strict sense of the term and therefore could not be given a retrospective operation as a declaratory Act and the Act was a remedial measure and Cl. (4) of S. 2 thereof must be given prospective operation.

6. The matter came up in a first appeal before Subba Rao and Ramaswami, JJ. whose decision is reported in - Nagendramma v. Ramakotayya, 1954 Mad 713 (AIR V 41) (F). Ramaswami, J. delivering the leading judgment, accepted the view of Sastri, J. that the words "marries again" in S. 2(4) of Act 19 of 1946

"are merely descriptive of the position of the husband as a twice married man at the date when the wifes claim for separate maintenance is made under the Act and do not exclude a husband who has taken a