Short Note : The non-applicant Yashodhara was married to the applicant Anokhilal on 19-5-67 at Jaora, district Ratlam according to Hindu rites. She lived with her husband for about four years and had two issues one daughter and one son by the applicant some time in 1971, the applicant left his wife at her father's house and thereafter neglected to maintain not only her but her children also. Treating herself as deserted and neglected Smt. Yashodhara filed the aforesaid application for grant of maintenance both for herself as well as for her children. Held: The first contention of the applicant is that the application on which the impugned order has been passed by the Court below was filed when the Criminal Procedure Code, 1898 was in force and consequently the learned Sessions Judge if he was not inclined to agree with the view taken by the learned trial Magistrate, should have made a reference to this Court under section 438 Criminal Procedure Code and should not have passed a final order as contemplated by section 397 Criminal Procedure Code, 1973. It is evident that the original application was filed by the wife under section 488 Criminal Procedure Code. Consequently any application for the revision of the order passed on such an application would, in the light of the decision of this Court in Dhruvanath v. Shrivanaresh Sharma, 1975 JLJ 319 , lie under the old Code and not under section 397 of the new Criminal Procedure Code. The question, however, is whether the impugned order should be set aside so far as it finally decides the dispute for maintenance between the parties and the learned Sessions Judge should be directed to make a reference to this Court. I think in the present circumstances to follow such a procedure would only mean that the learned Sessions Judge would again make a reference to this Court for the modification of the order passed by the learned Magistrate and final orders will have to be passed by this Court. As the matter has come before this Court, this Court can either under section 439 Criminal Procedure Code. 1898 or under section 401 Criminal Procedure Code, 1973 examine the correctness and legality of the order passed by the Court below and pass such final orders as the merits of the case require. As the matter has come before this Court, this Court can either under section 439 Criminal Procedure Code. 1898 or under section 401 Criminal Procedure Code, 1973 examine the correctness and legality of the order passed by the Court below and pass such final orders as the merits of the case require. I will, therefore, re-examine the correctness of the order passed by the learned Magistrate by which he disallowed the wife's claim for maintenance for herself and also for her son and allowed a sum of Rs. 50 per month only as maintenance for the daughter only. Held: Though the wife has not teen able to substantiate her allegations of crulty made against her husband but it is an admitted fact that since in the year 1971 when the non-applicant gave have a birth to a son the applicant has not cared to maintain his wife. According to him, he did not go to bring his wife from her parents house and also did not make any arrangement for her maintenance. Thus, the allegations of neglect and refusal are admitted. Where it is proved that the applicant has refused and neglected to maintain his wife and there is no evidence of the non-applicant leading any immoral life, the applicant is bound to maintain her. In these circumstances the finding of the learned Magistrate with regard to the liability of the applicant for maintaining the non-applicant and her son cannot be accepted as correct. So far as the claim for the daughter's maintenance is concerned, the applicant had nothing to urge in this Court also. 2. According to the applicant himself, he is employed as a teacher and his monthly salary is about Rs. 270. He also admits that he is the holder of about 5 acres of land in addition to the lands held by his father. He has alleged that he has a widowed sister for the maintenance of whom and her daughter he alone is responsible. It is not shown by him as to how in the life time of his father he alone is responsible for the maintenance of his sister. There is also no evidence as to under what circumstances the liability for the maintenance of a sister has fallen on him only. It is not shown by him as to how in the life time of his father he alone is responsible for the maintenance of his sister. There is also no evidence as to under what circumstances the liability for the maintenance of a sister has fallen on him only. In these circumstances, it cannot be said that the applicant has any other liability to discharge for maintaining any person other than his wife and children. Considering the present cost of living, an amount of Rs. 100 per month would, in my opinion, be a proper estimate for the amount to be awarded to the non-applicant for the maintenance of herself and her two children. 1975 JLJ 319 , referred to.