JUDGMENT Gulab C. Gupta, J. 1. Applicants feel aggrieved by the order dated 16-1-88 passed by Judicial Magistrate First Class Sarguja in M.Cr.C. No, 14/84 as approved by order dated 15-2-1989 passed by Sessions Judge, Ambikapur (Surguja) in Cr. Revision No. 44/88, dismissing their application for maintenance under Section 125 Cr.P.C. and have approached this Court by tiling this application under Section 482 Cr.P.C. 2. There is no dispute that the applicant Shivshanker is the minor son of the applicant Smt. Manmati. They riled an application in the Court of Judicial Magistrate Class 1 Surajpur on 12-11-84 alleging that the non-applicant Radheshyam was legally married husband of applicant No. 1 and father of applicant No. 2. They further alleged that the non-applicant has abandoned them since last about four months and is refusing even to maintain them. It was therefore prayed that the Court be pleased to order maintenance at the rate of Rs. 500./- per month. 3. The non-applicant denied this allegation and submitted that the applicant No. 1 was married to one Shivpal which relationship still continues. He denied that she was ever divorced by Shivpal in accordance with the custom. He further denied that he married the applicant No. 1 any time. He also denied that the applicant No. 2 was his son. According to him, he was not liable to pay any maintenance. 4. The learned trial Magistrate, on examination of evidence adduced by both the parties, held that the applicant No. 1 was legally married wife of Shivpal and the said marriage had not been dissolved. The learned Magistrate further held that there was no evidence to hold that the applicant No. 1 was married to Radheyshyam any time or that they lived together. Upon these findings, the learned Magistrate further held that the applicant No. 1 was not the wife of the non-applicant nor the applicant No. 2 was his son. The application was accordingly dismissed. Both the applicants preferred revision against the aforesaid order which has also been dismissed and hence this application. 5. Question for consideration is whether the aforesaid finding recorded by two Courts below is supported by evidence on record. The fact that the applicant No. 1 was earlier married to Shivpal is not in dispute and is indeed stated in Para 2 of the application. 5. Question for consideration is whether the aforesaid finding recorded by two Courts below is supported by evidence on record. The fact that the applicant No. 1 was earlier married to Shivpal is not in dispute and is indeed stated in Para 2 of the application. The case of the applicants is that there was a divorce between the applicant No. 1 and Shivpal in accordance with caste custom and thereafter the non-applicant took her as his lawfully wedded wife in May, 1983. Manmati as (PW 1) has, in her statement on oath, deposed that she could not pull on with her previous husband Shivpal and therefore he took another wife. According to her, there is an ancient custom of divorce in her community and therefore, she got divorce and married to non-applicant. In that marriage Lalau was present. She further deposed that she thereafter lived with the non-applicant for about two-three years and became pregnant. While she was pregnant, she was told to go to her father's place so that she may be looked after properly. According to her, he, however, disowned her and the child, after she gave birth to a child. In her cross-examination, she admits that her first husband is alive and had driven her out of the house by beating her and had thereafter taken second wife. This evidence does not establish divorce between her and her earlier husband Shivpal. Even if she had been believed fully it would only mean that there is a custom in her community for divorce. But that does not prove that she got divorce from her first husband. She, of course, proved that her first husband took second wife but that would not be decisive of the question but the second wife could be taken contrary to law. Under the circumstances, the evidence of applicant No. 1 does not prove that she was divorced by her first husband. On the contrary, she admits that she was driven out of the house by Shivpal in the month of Bhado, corresponding to English calendar, month of July/August. She admits that she delivered the child in the month of Kartik i.e. within two months on being divorced by her first husband. This would indicate that the child in her womb was from her first husband. She admits that she delivered the child in the month of Kartik i.e. within two months on being divorced by her first husband. This would indicate that the child in her womb was from her first husband. Probably because of this discrepancy she admitted that she had illicit relations with the non-applicant even before the marriage. Inspite of it, she admits that her previous husband asserts that the non-applicant No. 2 is his son. Laxmi Sharma (PW 2) is Sarpanch of the village and does not say anything about the divorce between the applicant No. 1 and her previous husband. 6. Lalau (PW 3) is the witness to the so-called second marriage. He also does not say, though he belongs to the applicants' community. He does not say anything about the divorce between the applicant No. 1 and Shivpal. Clearly therefore there is no evidence of divorce between the applicant No. 1 and her first husband. In this view of the matter, the applicant No. 1 would not be entitled to any maintenance. 7. Learned counsel for the applicants however submitted that in any case, the non-applicant is liable to maintain the applicant No. 2, his son. Unfortunately, the evidence on record does not establish that the non-applicant is the father of the applicant No. 2. Since the marriage between the applicant No. 1 and her previous husband has not been dissolved, he applicant No. 2 has been borne during their wed-look. There is therefore a legal presumption that he is the son of the husband of he applicant No. 1. There should therefore be some cogent and clear evidence to dislodge the said presumption. Applicant No. 1 has admitted that the applicant No. 2 was born not at the place of the non-applicant but at her father's house. Under the circumstances, the question requiring consideration is whether he was begotten by the non-applicant. If there would be a clear evidence of applicant No. 1's living with the non-applicant at any time within about 9 months of the delivery, it may have been possible to draw the inference of non-applicant's paternity. Unfortunately, the evidence in this behalf is very doubtful. Admission of the applicant No. 1 that the applicant No. 2 was born within two months after her being driven out of the house of first husband creates this confusion. Unfortunately, the evidence in this behalf is very doubtful. Admission of the applicant No. 1 that the applicant No. 2 was born within two months after her being driven out of the house of first husband creates this confusion. The evidence of other witnesses is not relevant on this point. The non-applicant's evidence, indicates that he never lived with the applicant No. 1 any time. In view of this evidence, it is not possible to hold that the presumption of the applicant No. 2 being the son of Shivpal has been dislodged in any manner. In this view of the matter, the applicant No. 2 is also not entitled to any maintenance. 8. Application fails and is dismissed.