( 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 Womens 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 plaintiffs suit.

( 2 ) AGGRIEVED by the judgment of the learned Judge the plaintiff preferred the present appeal on the ground that the learned Judges 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, (a ). . . . . . . . (b ). . . . . . . . . . (c ). . . . . . . . . (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 Womens 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 husbands 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 Ac