J. P. Chaturvedi, J. - (1.) THIS is a revision by Ayub Ali Khan against an order of the learned Sessions Judge, Bareilly, dated 24th February 1975 dismissing his revision against an order of the City Magistrate, Bareilly dated 12th November 1974 granting maintenance at the rate of Rs. 100/- per month to the opposite party.
(2.) THE facts giving rise to the revision are that Smt. Haseena Bano made an application under section 488 of the Code of Criminal Procedure 1898 in the court of City Magistrate, Bareilly claiming maintenance from her husband Ayub Alt Khan. She alleged that she had been married to Ayub Ali Khan and that she had been discharging the obligations of a wife towards her husband and that the behaviour of her husband Ayub Ali Khan was improper and cruel. She, therefore, left his house and began to live with her father. She was again taken to his house by Ayub Ali Khan but she was turned out of it after beating her. She also gave birth to a son from Ayub Ali Khan. THEre was an agreement between them under which Ayub Ali Khan agreed to pay Rs. 50/-to the applicant. She claimed Rs. 200/-per month for maintenance. In his written statement Ayub Ali Khan admitted that the applicant Smt. Haseena Bano was his wife. He, however, denied that his behaviour towards her was cruel. He further alleged that she had made the claim for maintenance at the instigation of her father. The claim of the applicant Smt. Haseen Bano found favour with the learned City Magistrate who granted her maintenance allowance of Rs. 100/- per month. Aggrieved against the order of the learned Magistrate Ayub Ali Khan filed a revision which was dismissed by the learned Sessions Judge on 24th February 1975.
(3.) AYUB Ali Khan has filed a second revision in this Court. Learned counsel for the opposite party Smt. Haseena Bano has taken preliminary objection as to the maintainability of the second revision. It has been contended that although the application for maintenance had been made when the Code of 1898 was in force, the order of the learned Magistrate was passed on 12th November 1974 after the Code of Criminal Procedure of 1973 had come into force. As such the first revision filed by AYUB Ali Khan in the court of Sessions was preferred and disposed of under the provisions of section 397 of the Code of Criminal Procedure 1973. Accordingly sub-section (3) of section 397 of the New Code barred a second revision in the High Court. In other words it has been contended that the Code of Criminal Procedure, 1973 has been given retrospective effect so that it applies to certain pending matters also. Learned counsel for the petitioner Ayub Ali Khan on the other hand has contended that the Code of Criminal Procedure 1898 was applicable inasmuch as Smt. Haseena Bano made an application for maintenance under section 488 of the Code of Criminal Procedure, 1898. He has, therefore, contended that the new Code of Criminal Procedure was not applicable and the second revision was not barred.;