Judgment R. P. Sinha, J. 1. This is an application in revision by the petitioner krishna Murari Pathak alias Lalan Pathak against the order passed on 20-1 1978 by the Sub-divisional Judicial Magistrate, Siwan, directing the petitioner to pay rs.100 per month to the mother of two boys named Nakul and Sahadeo under the provision of section 488 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code ). 2. The facts and circumstances giving rise to the present application are as follows. The opposite-party Smt. Lesari filed an application under section 488 of the Code in the Court of the Sub-divisional Judicial Magistral siwan, alleging that she was married to Rambali Gond and the petitioner was married with Lalta Devi who, according to her, was physically incapable of functioning as wife. Hence she used to remain at her Naihar and the petitioner had divorced her and she had accepted it. The case of the opposite party further is that she worked as maid servant in the house of the petitioner where she developed intimacy with the petitioner and on that account her husband had suspected her and divorced her. According to her, the petitioner proposed marriage and she accepted and they were married in Arya Samaj Mandir and thereafter started living as husband and wife as a result of which two boys were horn of her by the petitioner who are named Nakul and Sahdeo. According to her the petitioner subsequently became drunkard and began assaulting her and ultimately she was turned out of his house. On these allegations she had claimed Rs.250 per month by way of maintenance under section 488 of the code. 3. The petitioner, on the other hand, denied all the allegations made by her as according to him, there was never any divorce between him and his wife nor the opposite-party was ever divorced by her husband (Rambali Gond)and that she was living with her said husband by whom she had four sons, named Arjun Bhim, Nakul and Sahdeo and that there was never any cohabitation between the pettioner and the opposite party and hence there was no question of any issue to the opposite party by the petitioner. In short, the petitioner totally denied all the allegations made by the opposite-party which, according to the petitioner, were done at the instance of his enemies. 4. In short, the petitioner totally denied all the allegations made by the opposite-party which, according to the petitioner, were done at the instance of his enemies. 4. The learned Magistrate on the basis of the evidence has not accepted the case of the opposite party of marriage and divorce and other allegations male bv the opposite-party against the petitioner. He has, however, taken into consideration the facts and circumstances, which, according to learned counsel for the petitioner, were completely beyond the scope of the inquiry and inadmissible evidence, and has come to the conclusion that the two alleged off springs of the petitioner by the opposite party were entitled to be maintained even so illegitimate children of the petitioner and so he has passed the impugned order granting Rs.100 per month as maintenance to the two children to their mother, namely, the opposite-party. 5. Learned counsel for tha petitioner has very vehemently argued that the finding of the learned Magistrate that the alleged two sons, Nakul and sahdeo arc the illegitimate children of the petitioner is based upon guess and surmises and not on evidence on the record and an order for maintenance has been passed in their favour even though an application for their being made a party was refused by the learned Magistrate and so it has been submitted that the maintenance has been allowed to these two children who are not party to the proceeding but complete strangers to the whole proceeding. Learned counsel for the petitioner has referred to a number of decisions in support of the fact that it was for the opposite party, Smt. Lesari, an admittedly married wife of Rambali Gond, to prove conclusively beyond any shadow of doubt that the children in question, namely, Nakul and Sahadeo, were born of the petitioner and her husband had no access to her during the period when the alleged children were conceived by her. It has been submitted that on the contrary the evidence on the record shows that the opposite party had been living with her husband even while the alleged children are said to have been conceived by the petitioner. 6. Learned counsel for the petitioner has referred to the case of Prasad gareri V/s. Mt. It has been submitted that on the contrary the evidence on the record shows that the opposite party had been living with her husband even while the alleged children are said to have been conceived by the petitioner. 6. Learned counsel for the petitioner has referred to the case of Prasad gareri V/s. Mt. Kesari and another, AIR 1941 Patna 444) where it has been held that it was for the woman to prove that the child was born of the person before the latter could be called upon to disprove it as according to the said decision it is settled law that it is prima facie improper to accept without corroboration the mere statement of the mother that the person to whom she is not married is the father of the child. In this case learned counsel has submitted that the opposite-party has not been able to prove that her husband had no access when the children were conceived and so it was not for the petitioner to prove that the children were not born of him when the opposite party has not been able to establish prima facie that they were born of the petitioner and her husband had no access to her during the relevant period. 7. In B. . Mahadeva Rao V/s. Yashoda Bai, AIR 1962 Madras 141 also, another case relied upon by learned counsel for the petitioner, it has been held that it is for the mother claiming maintenance to show that the children, though born out of lawful wedlock, could only have been born to the alleged father, under the circumstances of an exclusive relationship. In this case the exclusive relationship with the petitioner and the opposite party has not been proved. In Perumal Nadar V/s. Ponnuswami Nadar, AIR 1971 Supreme Court 2358 it has been held that unless the husband is able to establish absence of access, presumption raised under section 112 of the Evidence Act will not be displaced. It may be repeated that in the instant case absence of access of the husband of the opposite party to her has not been established. It may be repeated that in the instant case absence of access of the husband of the opposite party to her has not been established. In the cass of Chilukuri venkateswarlu V/s. Chilukuri Venkatanarayana, AIR 1965 SC 176 also it was held that the presumption, which section 112 of the Evidence Act contemplates is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. 8. Learned counsel for the opposite-party has referred to a decision in the case of Sreenivasan V/s. Kirubai Ammal, AIR 1957 Madras 160 as, according to him, even an illegitimate child is entitled to maintenance. But, in order to establish the claim it has to be proved that the children were born of the petitioner when the husband of the opposite party claiming maintenance for her children, had no access to the opposite party at the time of conception of the children. In this case the opposite party has claimed to have children by her legally married husband as well as by the petitioner and has claimed maintenance for two children Nakul and Sahdeo whom the opposite-party claimed to have been born of the petitioner. It has been held in the case just referred to above as follows : - "where a married woman claims to have delivered one set of three children to her husband, and another set of three children to her alleged paramour, and has called her husband as witness to the delivery of the second set of three children to her alleged paramour in support of her claim for maintenance, the court should examine every relevant factor before coming to the conclusion that the heavy burden paternity thrown on the husband during the continuance of the marriage, under section 112 of the Indian evidence Act, has been discharged, and the alleged paramour is the real father of the three children conceived even during coverture, by reason of the fact that the husband could not have had access to the women at any time during which the children could have been conceived" . 9 In my opinion, in view of the facts of the present case and in absence of proof of non-access of the husband of the opposite-party to her during the period the children are said to have been conceived, she is not entitled to maintenance for them for the simple reason that they cannot be held to be illegitimate children of the petitioner when the husband of the opposite-party had also access to her during the period those children were conceived by her. 10. In the result, this application is allowed and the impugned order of the learned Magistrate is set aside.