JUDGMENT - PATEL H.D., J.: - This criminal revision is filed by Rajusha, a minor, through his guardian mother Sahebbi against respondent Munafsha claiming to be his son, challenging the judgment of the Additional Sessions Judge, Amravati dated 16-8-1983 setting aside the grant of maintenance allowance to the applicant, his mother Sahebbi and sister Rehana by the Judicial Magistrate First Class, Amravati, in Criminal Case No. 50 of 1979. 2. The facts, in brief, are that Sahebbi for herself and on behalf of her son Rajusha, the present application and her daughter Rehana (both children being minors) claimed separate maintenance of Rs. 200/- for herself and Rs. 100/- each for two minor children under section 125 of the Code of Criminal Procedure. The case of Sahebbi was that the marriage between herself and the respondent was solemnised on 20-3-1971 and dower was fixed at Rs. 5,000/-. The respondent Munafsha had first wife at the time of his marriage with Sahebbi. It was further alleged by Sahebbi that on account of premarital sex relationship with the respondent she had conceived a child for four months, when the marriage actually took place on 20-3-1971. After the marriage Sahebbi gave birth to a son, the present applicant and subsequently also gave birth to a daughter Rehana from the respondent. It is alleged that after the marriage both of them lived happily for two years at the place of Sahebbi's father and thereafter for no reasons the respondent deserted Sahebbi and her children, who are unable to maintain themselves and are living at the mercy of the father of Sahebbi, who was a poor man. It was also the case of Sahebbi that in the year 1974 she went to her husband's place where she stayed for three days before she was driven out of the house. The respondent neglected and refused to maintain Sahebbi and her children, she claimed the separate maintenance allowance for herself and her children alleging that the income of the respondent Munafsha was Rs. 10,000/- per annum. 3. The respondent Munafsha resisted the claim for maintenance on various grounds. In short, his case was that though he married Sahebbi on 20-3-1971 he legally and validly divorced her on 14-4-1971 upon discovering that his wife is a woman of easy virtue. It was also his case that she had conceived since before the marriage from some other person. 3. The respondent Munafsha resisted the claim for maintenance on various grounds. In short, his case was that though he married Sahebbi on 20-3-1971 he legally and validly divorced her on 14-4-1971 upon discovering that his wife is a woman of easy virtue. It was also his case that she had conceived since before the marriage from some other person. He also denied that Rajusha and Rehana are his children and asserted that they are the offsprings of illicit relationship with other persons. The respondent Munafsha denied having sufficient means to maintain Sahebbi and her children. In fact his case was that Sahebbi is in a position to maintain herself and her children. 4. After due consideration of evidence and material before him, the judicial Magistrate First Class, Amravati held that though the respondent divorced Sahebbi on 14-4-1971, she and her children were entitled to the maintenance as of right from the respondent. He also negatived the plea of the respondent that his wife Sahebbi is a woman of loose character and the two children born to her are offsprings of her illicit relationship with other persons. It was also held that Sahebbi and her children are unable to maintain themselves and the respondent though in a position to maintain, has neglected or refused to maintain them. 5. Aggrieved by the decision of the Judicial Magistrate, First Class, Amravati, the respondent filed a revision application before the Additional Sessions Judge, Amravati, who after hearing the parties set aside the order passed by the Judicial Magistrate First Class, Amravati, on the ground that it was incorrect and improper, with the result that the application under section 125 of the Code of Criminal Procedure stood dismissed. According to the Additional Sessions Judge, Sahebbi, the wife, failed to establish that the respondent Munafsha had access to her prior to the marriage since before four months and hence the presumption of legitimacy as contemplated by section 112 of the Evidence Act in favour of the son Rajusha would not arise. So also in respect of the other child, it was held that there is no evidence, much less adequate evidence, to come to the conclusion that the daughter Rehana was begotten by Sahebbi from the respondent Munafsha and he was the father of that child. So also in respect of the other child, it was held that there is no evidence, much less adequate evidence, to come to the conclusion that the daughter Rehana was begotten by Sahebbi from the respondent Munafsha and he was the father of that child. The Additional Sessions Judge also rejected the claim of maintenance of Sahebbi on the ground that she was living in adultery and for that purpose elaborately discussed the evidence relating to termination of her pregnancy. 6. Only Rajusha, who felt aggrieved by the judgment of the Additional Sessions Judge, Amravati, filed this revision application challenging the findings debarring him from claiming maintenance allowance from the respondent. His main grievance was that the Additional Sessions Judge has erroneously construed section 112 of the Evidence Act holding that the presumption of legitimacy does not arise in favour of the applicant Rajusha, because his mother Sahebbi had failed to establish that the respondent Munafsha had access to her. It was pointed out that the applicant, who was born within two hundred and eighty days after dissolution of marriage between his mother Sahebbi and the respondent Munafsha was the conclusive proof that he is the legitimate son of the respondent Munafsha, unless it is shown that the parties to the marriage had no access to each other at any time when the child (the applicant) was begotten. It was further submitted that the conclusive proof being in favour of the applicant, it was for the respondent to establish that he had no access to Sahebbi, the mother of the applicant-petitioner prior to his marriage. In order to consider the arguments, advanced, it is necessary to consider the provisions of section 112 of the Evidence Act, which reads as under:- “112. In order to consider the arguments, advanced, it is necessary to consider the provisions of section 112 of the Evidence Act, which reads as under:- “112. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had not access to each other at any time when he could have been begotten.” While considering this section the Supreme Court in (Venkateswarlu v. Venkatanarayani)1, A.I.R. 1954 S.C. 176, held that the presumption which section 112 of the Evidence Act contemplates is the 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. The applicant in the instant case was born within five months after dissolution of the marriage on 14-4-1971. It is thus manifestly clear that the applicant was born within two hundred and eighty days of dissolution of the marriage and that Sahebbi remaining unmarried, the presumption of legitimacy was bound to arise. The crucial question which arises for determination is on whom the burden will lie to displace the conclusive presumption under section 112 of the Evidence Act. As held in the case of Venkateswarlu (supra), the conclusive proof of legitimacy would arise, unless it is proved that the parties to the marriage had no access to each other at the time when the child could have been begotten. In that case the question which arose was, whether on evidence adduced in the case the respondent upon whom the burden of proof of non-access admittedly lay, had discharged the burden or not, the onus of proof of non-access is upon the party who alleges it. There can be no manner of doubt that it was for Munafsha, the respondent, to allege and prove that he never had an access to Sahebbi prior to his marriage or at the time when the child (the applicant) would have been begotten. 7. There can be no manner of doubt that it was for Munafsha, the respondent, to allege and prove that he never had an access to Sahebbi prior to his marriage or at the time when the child (the applicant) would have been begotten. 7. Contrary to the principles laid down by the Supreme Court and also followed in (Kasturi and others v. Ramasami)2, 1979 Cri.L.J. 741, the learned Additional Sessions Judge, Amravati while construing the provisions of section 112 of the Evidence Act observed as follows: “This being the position, unless the wife proved that the husband had access to her prior to the marriage since before four months, I am afraid the presumption of legitimacy as contemplated by section 112 of the Evidence Act in favour of the son Rajusha would not arise.” Apparently the learned Additional Sessions Judge fell into an error in throwing the burden upon Sahebbi, the wife, to establish the alleged access of the respondent Munafsha towards herself at the relevant time. What is required to be established is the non-access and the onus of proof lies on the respondent. 8. It was an admitted fact that the marriage between Sahebbi and the respondent was solemnised on 20-3-1971 and at that point of time Sahebbi was pregnant since about four months. It was also not disputed before me that the parties divorced each other on 14-4-1971 i.e. within 25 days of the marriage. The ground for dissolution, as alleged by the respondent, was the immoral character of Sahebbi. Within five months of dissolution of marriage the petitioner was admittedly born. With these facts the conclusive presumption of legitimacy of the petitioner would arise unless displaced by the proof of non-access by the respondent Munafsha to Sahebbi four months prior to the marriage. I am afraid that the respondent has not claimed in his pleading that he had no access to Sahebbi prior to his marriage leave apart the evidence on the point. 9. True, as admittedly by the respondent Munafsha, his father and Sahebbi's father are cousins and it is evident that the respondent Munafsha and Sahebbi are related to each other as cousins. The husband and wife were well know to each other. In the face of these facts, the respondent in his examination-in-chief has not deposed a single word about his non-access to Sahebbi four months prior to his marriage. The husband and wife were well know to each other. In the face of these facts, the respondent in his examination-in-chief has not deposed a single word about his non-access to Sahebbi four months prior to his marriage. The only suggestion found during cross-examination was that he had been Sahebbi in his Wadi prior to his marriage and he was acquainted with her. He also stated that he never visited the house of Sahebbi prior to his marriage. He even denied that he had no issues from Sahebbi. Such evidence, in my opinion, is not enough to conclude that the respondent had no access to Sahebbi prior to his marriage. The presumption of legitimacy being highly favoured it is necessary that the proof of non-access must be clear and satisfactory. It was for the respondent to prove that it was physically impossible for him to cohabit with Sahebbi during the period when the child (the applicant) was conceived. A mere statement that the respondent never visited the house of Sahebbi prior to his marriage was not entitled to any weight. Even his bare denial that he had issue from Sahebbi did not amount to such proof as would displace the effect of the provisions of section 112 of the Evidence Act. The respondent having failed to displace the effect of the provisions of section 112 of the Evidence Act as stated above, the presumption of legitimacy of the petitioner as having been born to the respondent Munafsha will have to be accepted and the petitioner will be entitled to the maintenance allowance as fixed by the Judicial Magistrate First Class, Amravati. 10. In the result, the revision application is allowed. The order passed by the Additional Session Judge, Amravati in Criminal Revision No. 170 of 1982 is hereby set aside in so far as the petitioner is concerned, and the order passed by the Judicial Magistrate First Class, Amravati, granting maintenance allowance to the petitioner is hereby maintained. The respondent shall pay the costs of this revision application to the petitioner and bear his own costs. Revision allowed. -----