ORDER Shiv Dayal, J. This is a reference u/s 438, Code of Criminal Procedure for setting aside the order of the Magistrate 1st Class, Chhindwara, cancelling the order of maintenance which had earlier been passed u/s 488, Criminal Procedure Code. In Miscellaneous Criminal Case No. 21 of 1962, the Magistrate 1st Class, Chhindwara, passed an order on 9 April 1964, u/s 488, Criminal Procedure Code, awarding Smt. Somti Rs. 10 per month from the date of the application and Rs. 20 per month from the date of the order, as maintenance. It appears that later on, Shankar (the husband) made an application for cancellation of that order on the ground that Smt. Somti was leading an adulterous life. But that application was dismissed, as the allegation could not be proved. Eventually, on 19 April 1966, Smt. Somti made an application for the recovery of Rs. 220 as arrears of maintenace by attachment. This was resisted by Shankar and he made a separate application on 8 July 1966 for Cancellation of the maintenance order alleging that the wife was living in adultery which disentitled her to maintenance and made the order of maintenance liable to be cancelled. He definitely alleged that Smt. Somti had conceived an illegitimate child and that it was proof of her leading an adulterous life. He also prayed that she be immediately examined medically as she was arranging to miscarry. In answer to this application of Shankar, Smt. Somti submitted that no doubt she was pregnant but averred that, as in the meantime he (Shankar) had sexual intercourse with her, she conceived. Shankar examined himself and also produced Chetram (P.W. 2), Kamlibai (P.W. 3)and Ayodhya (P.W. 4). Shankar says that she lived with him for one year only and after that she was living with her father for about six or seven years. He says that he did not like the ways of his wife. Even during. that one year, when she lived with him, people used to visit her in his absence. After she went away to her father's house, she never returned. He denied that he ever went to her father's house or had sexual intercourse with has. He denied that the child who was born, in the meantime, was his. The three witnesses, Chetram, Kamlibai and Ayodhya belong to the same locality. After she went away to her father's house, she never returned. He denied that he ever went to her father's house or had sexual intercourse with has. He denied that the child who was born, in the meantime, was his. The three witnesses, Chetram, Kamlibai and Ayodhya belong to the same locality. Their evidence is to the effect that people visit her indiscriminately; that she indulges in singing and dancing; and that in that connection she absents herself from the village for many days at a stretch. In rebuttal, Smt. Somtibai examined herself and denied those allegations. She reiterated that her husband had sexual intercourse with her and that was the cause of her conception and the birth of the child. As I read Section 488, Criminal Procedure Code, it seems to me quite clear that it provides a summary remedy to ensure some supply of food, clothing and shelter to a deserted wife and children and the object of the proceeding is to prevent possible vagrancy of the woman by compelling her husband to support her. But, at the same time, the intention of the law is equally clear that a woman who lives in adultery is disentitled to maintenance. In other words, the summary remedy u/s 488, Criminal Procedure Code, is available only to a faithful wife. If she conceives an illegitimate child, she disentitles herself to maintenance so far as Section 488, Code of Criminal Procedure is concerned. It is open to her to take recourse to a civil remedy and get a decree for maintenance. The subsistence of the marriage, inspite of the order of maintenance u/s 488, Criminal Procedure Code, would be conclusive proof that the child born to her is a legitimate child of her husband (Section 112, Evidence Act) unless it is proved that the parties to the marriage had no access to each other at any time when the child could have been begotten. See Dhedu v. Malhanbai 1966 MPLJ 11 = 1966 JLJ 24 , in which Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana, , and other decisions have been relied on. It must at once be observed with regret that the learned Additional Sessions Judge did not care to read these decisions of this Court and the Supreme Court. See Dhedu v. Malhanbai 1966 MPLJ 11 = 1966 JLJ 24 , in which Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana, , and other decisions have been relied on. It must at once be observed with regret that the learned Additional Sessions Judge did not care to read these decisions of this Court and the Supreme Court. Coming back to the main point, since every presumption is to be made in favour of legitimacy of the child, who is found to have been born during a lawful wedlock, the onus of proving non-access is heavy on the party who alleges illegitimacy. The presumption of legitimacy is one of the strongest presumptions of which the law is cognizant. All the same it is a rebuttable presumption and it is always a question of fact whether it has been rebutted in a particular case. Non-access has to be proved like any other physical fact. It is true that the law requires positive proof of a negative fact, but it may be established either by direct or by circumstantial evidence of an unambiguous character. The presumption of legitimacy cannot be rebutted by any evidence except of non-access. Applying these tests to the present case, I find that there is convincing evidence of non-access. Shankar stated on oath that Smt. Somti lived with him only for one year and then she went away to her father's house. She never returned and has continuously been residing with her father. After she left his home, he never visited her. His statement is amply supported by the circumstances. There was litigation between him and Smt. Somti. He resisted her application for maintenance but it was allowed. Subsequently he made an application for cancellation of that order on the ground that she was living in adultery. In this situation, it cannot be believed that he visited her. Smt. Somti herself says that it was only after Shivratri (that is March 1966) that her husband had sexual intercourse with her. Her statement is not convincing or consistent. Let it first be pointed out that in her application for the recovery of arrears of maintenance, she did not state either that she had conceived or that he had visited her. Her statement is not convincing or consistent. Let it first be pointed out that in her application for the recovery of arrears of maintenance, she did not state either that she had conceived or that he had visited her. In her deposition, at one place she says that her husband started visiting her and he had sexual intercourse with her only during the period between Shivratri (March 1966) and Baisakh (May 1966), while at another place she says that she was living at her father's house for the preceding 7 years and her husband did not come to her father's house for the first two years but after that he started coming there. It is unbelievable that her husband would continue, or that she would allow him, to have sexual intercourse with her between March and May 1966, when she had made the application for recovery of maintenance on 19 April 1966. Then she says that her father and mother and also the inhabitants of the Mohalla are all aware of the fact that her husband visits her, but she did not produce any inhabitant of the Mohalla, not even her father or mother. Her explanation in the witness-box is that she resisted sexual intercourse but her husband pleaded with her that, as he was paying her maintenance and as the marriage had not been legally dissolved, he had a right to have sexual intercourse with her. This is clearly an after-thought. She did not say any such thing in her reply dated 5 September 1966 to Shankar's application dated 8 July 1966. She made a very indefinite and general statement that "the non-applicant has done sexual intercourse with the applicant, hence there is a pregnancy". On 8 July 1966 time was taken by her counsel to reply, and 1 August 1966 was fixed for that purpose. Again, on the 1st August more time was sought and the 19th August was fixed. On the last mentioned date the Presiding Officer was on tour but no reply was filed even on that date. And, it was only on 5 September 1966 that such a reply was filed. She had full two months time to reply in detail. Again, on the 1st August more time was sought and the 19th August was fixed. On the last mentioned date the Presiding Officer was on tour but no reply was filed even on that date. And, it was only on 5 September 1966 that such a reply was filed. She had full two months time to reply in detail. While the husband produced three witnesses of the Mohalla, whom the learned Magistrate believed, about her undesirable conduct and suspicious character, she did not produce a single one to say that people did not visit her indiscrimininately or that she did not indulge in singing and dancing or that She did not absent herself from the village for days together, or that Shankar was visiting her at her father's house. She did not even examine her father or her mother, to rebut non-access. In view of all these facts, I am of the opinion that non-access is proved. There is nothing in the wording of the section which requires the proof of non-access to go to the extent of impossibility. See AIR 1934 124 (Nagpur) , where it was observed by Vivian Bose, A.J.C., as he then was, that Section 112 of Evidence Act merely requires proof to the satisfaction of the Court that the parties had no access to each other not that there was no possibility of access. The expression living in adultery in Section 488, Criminal Procedure Code, certainly excludes the case of a single lapse. But there is no warrant for going to the extent of considering it as to mean that the woman must be in a permanent or quasi-permanent union with another man, not her husband. All that the expression connotes is that there should be a course of conduct for some period during which she was deflected from the path of virtue. An individual lapse and the life of a common prostitute are the two extremes, in between which are gradations of increasing unchastity. It is always a question of fact, to be determined from the circumstances of each case, whether infidelity deepened into a life of adultery. It is open to the aggrieved party to go to the civil Court. The scope of the present proceeding is limited. The reference is rejected. The order passed by the Magistrate cancelling the order of maintenance is upheld. There shall be no order for costs. It is open to the aggrieved party to go to the civil Court. The scope of the present proceeding is limited. The reference is rejected. The order passed by the Magistrate cancelling the order of maintenance is upheld. There shall be no order for costs. Final Result : Dismissed