JUDGMENT : -This is an appeal by the defendant-husband. The suit was brought by the respondent-wife and she claimed to recover Rupees 900/- as arrears for past maintenance and claimed future maintenance at Rs.50/- per month. She alleged her husbands cruelty and she also alleged that he had remarried on or about July, 1935.

2. The husband denied cruelty.

3. The trial court framed an issue on cruelty and also an issue on the question whether the plaintiff was entitled to live separately and to, get maintenance. On the issue of cruelty, the trial court came to the conclusion that the entire story that the husband was guilty of cruelty towards the wife was totally false. The trial court, however, held that since the husband had remarried, the wife was entitled, under the Hindu Married Womens Right to Separate Residence and Maintenance Act (Act No.XIX of 1946), to live separately and to receive maintenance. Accordingly, the suit was decreed for future maintenance at the rate of Rs.25/- per month. The rest of the suit was dismissed.

4. Cross-appeals were filed and the lower appellate court has endorsed the finding of the trial court that the allegation of legal cruelty had not been made out. It held that the plaintiff was not entitled to past maintenance, though it held that the Hindu Married Womens Right to Separate Residence and Maintenance Act (Act No.XIX) 1946 was applicable and she was entitled to future maintenance. Both the appeals were, therefore, dismissed.

5. The husband has preferred this appeal. It is contended on his behalf that the wife was not entitled to separate residence or maintenance under the Hindu law merely on the ground of remarriage of the husband.

6. On, behalf of the husband, reliance is placed on Mullas Principles of Hindu Law, 11th edition, S.555 and Mayne on Hindu Law and Usage, 10th edition, paragraph 688 for the contention that no separate right of residence and maintenance comes into existence under Hindu law merely because the husband has taken a second wife. Attention was invited, in this connection, to the case of - B. Naganna Nayudu v. B. Rajya Lakshmi Devi, AIR 1928 PC 187 (A). The contention of learned counsel for the husband appellant is correct that under pure Hindu law, the mere second marriage of a husband does not entitle the wife to separate residence and maintenance.

7. Learned counsel for the husband appellant then argued that inasmuch as the second marriage took place in or about 1935, the wife could not claim the benefit of Act XIX of 194S which was not in force in 1935. That Act sets out, among other grounds for claiming separate residence and maintenance, a ground in the following words:

"(4) If he marries again (The reference is to the marriage of the husband)."

It is contended that Act XIX of 1946 will only apply to a case where the second marriage has been solemnised after the coming into force of Act XIX of 1948 and not to a case where the marriage was solemnised before the coming into force of that Act. This contention of learned counsel is supported by the Division Bench case of - Laxmibai Wamanrao v. Wamanrao Govindrao, AIR 1953 Bom 342 (B). There it was held that sub-cl. (4) of S.2 of the said Act was remedial in character and imposed a new liability on one party and conferred fresh rights on another and it was not retrospective. It was held that the words "If he marries again" meant "If he marries again after the Act comes into force".

8. The same view was taken in - Mt. Sukhribai v. Pohkalsing, AIR 1950 Nag 33 (C).

9. In the Madras High Court, there is a difference of opinion. In - Lakshmi Ammal v. Narayanaswami Naicker, AIR 1950 Mad 321 (D), the opposite view was taken, but this decision did not find favour with the learned Judge of the same court who decided the case of - Sidda Setty v. Muniamma, AIR 1953 Mad 712 (E).

10. The matter has also been discussed in - Anjani Dei v. Krushna Chandra, AIR 1954 Orissa 117 (F). Mr. Justice Mohapatra, who was one of the members of the Division

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