JUDGMENT - Halbe A.A., J.:—The important question raised is about the scope of section 112 of the Evidence Act, which provides for the presumption about the birth of a child during the marriage. 2. The said provision clearly reads that — “If a person is born during the continuance of a valid marriage between his mother and any man or within 280 days after dissolution of their marriage, the mother remaining unmarried, it would be conclusive to hold that the said person is legitimate son of both these spouses.” The only exception that has been carved out in that section is that this presumption which emerges from section 112 of the Evidence Act can only be set at naught if it could be shown that the parties to the marriage had no access to each other at any time, the child could have been begotten. This question really dominates the consideration of maintenance payable to the petitioner and her minor daughter, who have been branded as petitioner No.1 being a woman of easy virtue and the petitioner No. 2 being not the legitimate child of the respondent No. 1, whose marriage with the petitioner No. 1 is subsisting even at present in this case. 3. The learned Advocate for the petitioners has vehemently contended that the approach of both the courts below lacks indepth study of the facts and points to the easy way of coming to the conclusion that the petitioner No. 2 is not legitimate child and the petitioner No. 1 being unchaste, deserves to be set aside and that the respondent No. 1 should be directed to pay the maintenance to both these petitioners i.e. mother and child. 4. As against this, the learned Advocate for the respondent No.1 has contended that both the Courts below have detailed various facts which go to show conclusively that the respondent No.1-husband had no access to the petitioner No.1 during the period during which petitioner No. 2 was begotten and accordingly, both the Courts have held in his favour. Whereas the trial Court was inclined to grant maintenance of Rs. Whereas the trial Court was inclined to grant maintenance of Rs. 100/- to the petitioner mother inter alia holding that one act of unchastity need not deprive the petitioner No. 1 from maintenance, the Appellate Court took the serious view that once a woman begets an illegitimate child, her loyalty to the husband and to the relationship of wedlock are adversely affected and hence the mother was not entitled to the maintenance. Such is the verdict of the revisional Court. 5. In order to appreciate these diverse arguments which, as indicated, involve the serious consideration of the scope of section 112 of the Evidence Act, it is imperative to traverse through the facts which have been canvassed on behalf of the petitioners and the respondent-husband. 6. Before probing into those facts, the learned Advocate for the respondent has alleged that the scope of this Court in writ petition is extremely limited and since both the Courts have held in favour traverse through either the judgments or the evidence recorded on behalf of the respondent-husband. The learned Advocate for the petitioner, on the other hand, has contended that even if the evidence is taken into consideration as it is, it does not at all show that the petitioner No. 1 had relations with one paramour and she gave birth out of that relationship to the petitioner No. 2. I do find substance in this argument because both the courts below have taken a simplistic view of arithmetical calculation of the period of conception and period of delivery. They have dwelt upon the period of 1982 and 1983. The courts have observed that on the evidence led on behalf of the petitioners, it is clearly indicated that the petitioner-mother or wife was not in the company of the respondent No.1 during January to September, 1983 and at best, they could be in company during the similar period of 1982. But when the evidence of the petitioner's witnesses .is taken into consideration, it clearly shows that the year to which they want to make reference is the year 1983 and not 1982. Their evidence was recorded in the year 1985 and what they deposed to was that the third year was to be computed on the basis of the completion of Sankrant period for the year 1985. Their evidence was recorded in the year 1985 and what they deposed to was that the third year was to be computed on the basis of the completion of Sankrant period for the year 1985. Those admissions have been ignored by both the courts below and I feel that this serious error on the part of the courts below must require serious consideration of the evidence at the hands of this Court. It is in this background that the entire evidence shall have to be scrutinised. 7. The petitioner wife on behalf of herself and her daughter —then one year old—had filed maintenance application under section 125, Criminal Procedure Code against her husband. The facts that have been narrated in that petition are that the marriage between the petitioner No. 1 and the respondent was performed according to Hindu rites and customs in the month of Vaishakh corresponding to May, 1975 at village Nivali, Tq. Jintur. Since then both these spouses have cohabited as husband and wife in the house of the respondent-husband upto September, 1983 i.e. Mahalaxmi festival of 1983. Their association thus lasted for about 8 years and 6 months at village Ridaj. However during this period their relations did not remain cordial inasmuch as six months after 1975, the husband started ill treating his wife without any reasonable and probable cause at the instigation of the parents of her husband. The husband was living as a member of joint family and all the members of the family of the respondent treated the petitioner with cruelty. They instigated each other to ill treat the petitioner and in consequence, there were several instances of physical assault on the petitioner. Not only that, many a time the petitioner was not provided with food-instead was given severe beating. She was subjected to mental torture and thus the relations deteriorated inasmuch as by Diwali festival of 1976, respondent deserted the petitioner. This went on upto Diwali festival of 1979 but thereafter with the intervention of the relations of the petitioner, the husband and wife lived together. 8. When the petitioner returned back in the year 1979 to the house of the respondent, she found that the respondent No.1 had married one Laxmibai d/o. Bapurao of village Kausadi, Tq. Jintur in the month of April 1978. The second marriage was performed behind the back of the petitioner. 8. When the petitioner returned back in the year 1979 to the house of the respondent, she found that the respondent No.1 had married one Laxmibai d/o. Bapurao of village Kausadi, Tq. Jintur in the month of April 1978. The second marriage was performed behind the back of the petitioner. Laxmibai was residing with the respondent No.1 at village Ridaj. However when the petitioner went back to the house of her husband, he accepted her and treated her as his wife and cohabited with her in performance of marital obligations. But again the respondent deserted the petitioner for about 2 years i.e. from May, 1980 to December, 1982. Incidentally it will have to be stated that the reference to December 1983 has really created confusion in the minds of the courts below. The Courts below have taken a view that if the petitioner, on her own admission, was away from the company of her husband upto December 1983, she could not, plead the case of cohabitation with her husband between January 1983 to September, 1983. 9. It is unfortunate that the Courts have lost sight of the important statement that this desertion was for two years. It could be, therefore, the desertion between May 1980 to December 1982. Again with the intervention of the relations, the petitioner went back to the house of her husband in Sankrant period i.e. January, 1983 and again cohabited with her husband during this period. She remained pregnant on account of this cohabitation and at the time of Mahalaxmi festival, the respondent-husband mercilessly beat the petitioner alleging that she was devoid of character and drove her out forcibly from the house and sent her to the maternal uncle of the respondent at village Karwali, Tq. Jintur with the younger brother of the husband by name Ganesh. From there the father of the petitioner took the petitioner to his house and since then the petitioner is residing with her father at village Niwali. 10. The petitioner has contended that when she was so driven out at the time of Mahalaxmi festival of 1983, she was pregnant and was carrying about six months' child in her womb. Soon thereafter the petitioner by notice dated 15-10-1983, called upon the respondent-husband to provide her maintenance. She also referred to her pregnancy. 10. The petitioner has contended that when she was so driven out at the time of Mahalaxmi festival of 1983, she was pregnant and was carrying about six months' child in her womb. Soon thereafter the petitioner by notice dated 15-10-1983, called upon the respondent-husband to provide her maintenance. She also referred to her pregnancy. This notice was duly delivered to the respondent but the same was not replied within the stipulated period in that notice. It is also contended that the petitioner filed Hindu Marriage Petition No. 78/83 against the husband for restitution of conjugal rights. But she withdrew the same on 29-10-1984 because there was news report in the newspaper that the brother of the respondent had poisoned his own wife who died on account of poisoning. The petitioner was feeling that if she insisted on restitution, she would be similarly done to death by the respondent. Since the reputation of the family of the husband was such, she had to withdraw the petition for her own safety. 11. The petitioner has submitted that the respondent-husband holds at least 12 acres of land and earns Rs. 25,000/- per year. The petitioner herself is physically weak. She, therefore, claimed the maintenance of Rs. 200/- for herself and Rs. 100/- for her daughter. 12. The claim was resisted by the respondent by his written statement at Exh. 7. The respondent admitted that his marriage with the petitioner was performed in the month of Vaishakh of 1975 but he has stoutly denied that the petitioner No. 2 is his daughter. The petitioner No.1 according to him, resided with him for about five months but on account of her nagging behaviour, she left his house for ever. She never turned up thereafter and hence there was no question of cohabitation between the petitioner and the husband during the year 1983. He has stated that in the Diwali of 1975 the father of the petitioner removed the petitioner at his house and there was, therefore, no question of respondent's driving the petitioner out of his house. He has denied that the petitioner came back to reside with him in 1979 or even thereafter. He has also denied that he married Laxmibai while the first marriage was subsisting. He has stoutly denied that the petitioner stayed with him and cohabited with him from January 1983 to September 1983. He has denied that the petitioner came back to reside with him in 1979 or even thereafter. He has also denied that he married Laxmibai while the first marriage was subsisting. He has stoutly denied that the petitioner stayed with him and cohabited with him from January 1983 to September 1983. He has further alleged that the petitioner was continuously living in adultery and had illicit relations with one Rustoom s/o Munjaji of village Niwali and it is out of that relationship that the petitioner No.1 gave birth to the petitioner No. 2 daughter. Regarding notice dated 15-10-1983, he has stated that he had duly replied to the notice and accordingly he has produced a copy of that reply on record. Regarding the Hindu Marriage Petition No. 178/83, the respondent has contended that the same was withdrawn by the petitioner as she had really no case. On the other hand, the dismissal of the Hindu Marriage Petition would indicate that the petitioner was living separately without the permission of the respondent. She was so residing because she was given to adultery. The petition, according to the respondent, is mala fide and deserves no sympathy. Regarding the income, he has stated that he does not own any landed property. He himself is physically weak and cannot, therefore, provide any maintenance. In keeping with these submissions, the respondent prayed for dismissal of the petition. 13. The learned trial Judge recorded the evidence of the petitioner at Exh. 13, that of her father Annasaheb Rajaram, that of Ganeshrao Santuba and Ramrao. The parallel evidence led on behalf of the respondent is of the respondent himself, his father Namdeo Santuba and one Marotirao. On assessment of the oral as well as documentary evidence, the trial Court found that the petitioner No. 2 was not the child of the respondent and accordingly dismissed the claim for maintenance of petitioner No. 2 —the daughter of petitioner No. 1. However the trial Court was pleased to grant maintenance of Rs. 100/- p.m. to petitioner No. 1-wife. In support of this order, the trial Court observed that the petitioner had successfully proved that the respondent had refused to maintain or neglected the petitioner but the trial Court also found against the petitioner No. I that the petitioner No. 2 was not the daughter born to petitioner No.1 from the respondent. 100/- p.m. to petitioner No. 1-wife. In support of this order, the trial Court observed that the petitioner had successfully proved that the respondent had refused to maintain or neglected the petitioner but the trial Court also found against the petitioner No. I that the petitioner No. 2 was not the daughter born to petitioner No.1 from the respondent. Likewise it was also held that the petitioner was unable to maintain herself and she thus was entitled to maintenance from her husband. 14. This finding led to the appeal. It is pertinent to note that although the trial Court held that the petitioner No. 2 was not the child of the respondent and that the petitioner had adulterous intercourse with some third person, the trial Court relied on the view of the Calcutta High Court reported in (A.I.R 1925 Calcutta 794)1, in which it is held that the respondent had failed to prove continuity of conduct of adultery on the part of the petitioner at the time of consideration of the maintenance claim. The law required that the woman must be living in adultery at the time of maintenance application. Hence despite the act of adultery on the part of petitioner, the trial Court was pleased to hold that one act of adultery should not deprive the petitioner-wife from getting maintenance. Accordingly, the trial Court awarded the maintenance of Rs. 100/- p.m. to petitioner. 15. The learned Sessions Judge, while deciding the Criminal Revision against this order, found that the petitioner No. 2 was not the child of respondent and further that the petitioner was living in adultery and that was the good ground to decline her the maintenance. Accordingly, the Appellate Court dismissed the maintenance claim in its entirety. 16. It is against this order that the petitioner-wife has approached this Court. The learned Advocate for the petitioners has taken me through the evidence on record and has tried to canvass that the reasons for holding the adulterous conduct on the part of the petitioner are not at all justified from the evidence on record. The courts have taken a simplistic view of section 112 of the Evidence Act. The courts below dwelt on the arithmetical calculation of the period of cohabitation without going into the broad spectrum of the facts which are revealed from the evidence. The courts have taken a simplistic view of section 112 of the Evidence Act. The courts below dwelt on the arithmetical calculation of the period of cohabitation without going into the broad spectrum of the facts which are revealed from the evidence. He has drawn my attention to the notice given by the petitioner and the reply thereto given by the respondent. He has urged that right from the year 1976 to 1983 there was no proceeding taken by the respondent although it is alleged that the respondent soon after marriage demanded valuable gold ornaments and cash. It is only when she gave the notice that the respondent gave replies by way of counter notice, which was nothing but afterthought. 17. It is also suggested that there is no mention of the so called paramour referred in the reply notice of the respondent to the notice given by the wife. The respondent did state in the reply that the petitioner had reverted back to adultery and that she was indulging in adultery right from the beginning. He has urged that if this be so, it is unlikely that the husband would observe silence for about 8 years. On the other hand, the husband having acquired another wife did not feel any necessity to give attention to his first marriage and when the first wife started the Court proceeding for claiming maintenance, he set up the false defence of adultery and theft of articles. The entire conduct reveals a questionable behaviour on the part of the respondent. Had the claims of the respondent been bona fide, they should have been reflected in the Court proceedings. On the other hand, the petitioner not only filed the maintenance application but had also filed the Hindu Marriage Petition for restitution of conjugal rights. These proceedings should persuade the Court that the petitioner was all along holding herself in the relationship of wedlock with the respondent and further that if she was driven out lastly at the time of Mahalaxmi festival in 1983, she was perforce required to give notice and file the proceedings. In such circumstances, it was wholly erroneous on the part of the courts to come to the conclusion that the petitioner was indulging in adultery and that the petitioner No. 2 was the fruit of the amorous relations between herself and one Rustoom Munjaji. 18. In such circumstances, it was wholly erroneous on the part of the courts to come to the conclusion that the petitioner was indulging in adultery and that the petitioner No. 2 was the fruit of the amorous relations between herself and one Rustoom Munjaji. 18. The learned Advocate for the respondent, on the other hand, has tried to support the judgments. He has also drawn my attention to various admissions given by the petitioner and has tried to impress that the petitioner could have never resided with the respondent during the period she conceived petitioner No. 2. He has stated that when petitioner herself gives an admission that she does not know the names of the husband of near relations in the house of the respondent or that she does not remember the number of children born to the brothers and sisters of the respondent, it should be held that she never resided with the respondent. He has also drawn my attention to the admissions given by petitioner and her father that the petitioner resided with the respondent in the year 1982 and not in 1983 and if that be so, the petitioner now cannot be allowed to say that she resided with the respondent in the year 1983 more particularly from January to September 1983. These rival submissions cannot be termed as without substance. 19. Before probing into those pieces of evidence, it would be necessary to set out the scope of section 112 of the Evidence Act. Section 112 of the Evidence Act raises a presumption of legitimacy of a child born during the subsistence of marriage. The said section assumes the existence of a legal marriage and says that birth during the continuance of valid marriage is conclusive proof of legitimacy. The scope has been extended to cover even the child born during the wedlock but conceived before actual marriage. Although this presumption is a rebuttable presumption of law, the only way to disbelieve the same is to show that the spouses has no access to each other during the subsistence of marriage. The scope has been extended to cover even the child born during the wedlock but conceived before actual marriage. Although this presumption is a rebuttable presumption of law, the only way to disbelieve the same is to show that the spouses has no access to each other during the subsistence of marriage. However the words 'access' or 'non-access' has been widely construed by the courts in several rulings and it can be briefly stated that when the spouse claims non-access, more particularly during the subsisting marriage, the spouse is enjoined upon to prove that the access was impossible either on account of impotency, serious illness, absence etc. or by convincing evidence that though the opportunity existed, there was no sexual intercourse during the period when child must have been begotten. Access and non-access means no more than existence or non existence of opportunities for marital intercourse. The word 'non -access' would include futility or incapability of access on account of impotency, want of virility through immature age or other physical incompetency. 20. The evidence that though opportunity existed, unfortunately there was in fact no sexual intercourse and in that event the presumption that the child is not the offspring of the husband, must be very strong. If the husband is proved to have an access, adultery on the wife's part will not justify the finding of illegitimacy. When the husband pleads non-access, the same must be established not only by positive or direct evidence but also by circumstantial evidence though as the presumption of legitimacy is finding favour for law and proof of non-access must be clear and satisfactory. The presumption is conclusive and can only be disbelieved by proof of non-access at the relevant time. The said presumption of law cannot be lightly repelled. The evidence of paramour must be strong, distinct, satisfactory and conclusive. It must be to the utmost satisfaction of the Court and that at the time of conception, there was no access by the husband to the wife in sexual sense. It can only be shown in rebuttal by the husband that he had severed of physical relations with the wife. The burden of proving non-access lies heavily upon him who disputes the paternity of child. 21. It can only be shown in rebuttal by the husband that he had severed of physical relations with the wife. The burden of proving non-access lies heavily upon him who disputes the paternity of child. 21. In A.I.R. 1954 S.C. 176 in the case of (C. Venkateswarlu v. C. Venkatanarayan)1, it is observed that if the father fails to prove that there was no opportunity for intercourse between him and the wife, his plea of illegitimacy of the child cannot be countenanced. From the foregoing discussion, it would be manifest that when the respondent-husband claims that the petitioner No. 2 is an illegitimate child born to the petitioner No.1 from her paramour, the onus is heavily on the respondent. It will have, therefore, to be ascertained as to whether he proved non-access as contemplated. It will have to be borne in mind that the marriage between the petitioner No.1 and the respondent No.1 is still subsisting as there is no divorce between them and hence the presumption under section 112 of the Evidence Act will initially go in favour of the petitioner No. 1. 22. Going to the evidence, it would be appropriate to dwell upon the notice Exh. 17 dated 15-10-1983 and the reply given by the respondent on 3-11-1983 at Exh. 27. In the notice Exh. 17, it is stated by the petitioner that the marriage between the petitioner No.1 and the respondent was celebrated in 1975; that between 1976 Diwali to 1979 Diwali, the petitioner was perforce required to stay with her parents but in 1979 she was taken back by respondent with the intervention of close relations. During that period for about 5 to 6 months, petitioner resided with the respondent and again in Vaishakh month of 1980, she was asked to leave the house of the respondent No.1. She had gone to attend the marriage of her brother and taking advantage of this fact, the respondent refused to admit her at his house. When she returned as indicated in 1979 after the first reconciliation, she had found that respondent was living with Laxmibai-another wife. Again in 1983 January, she was taken to the house of the respondent by her maternal uncle and nephew and at that time, it is claimed, that the respondent accepted the petitioner. This was in January 1983. When she returned as indicated in 1979 after the first reconciliation, she had found that respondent was living with Laxmibai-another wife. Again in 1983 January, she was taken to the house of the respondent by her maternal uncle and nephew and at that time, it is claimed, that the respondent accepted the petitioner. This was in January 1983. She stayed there upto September 1983 (Mahalaxmi festival) whereafter again she was abandoned by respondent. She has stated in the notice that when she left, she was pregnant and was carrying a child of about 5-6 months' old. She has alleged that the respondent and his relations systematically ill treated her and ultimately driven her out. This notice is dated 15-10-1983. 23. It will have to be stated that no correspondence whatsoever has taken place between the petitioner and the respondent between 1975 to 1983. This is the first notice given by petitioner to the respondent. Now this time gap will have to be appreciated in the background of the reply given by the respondent in his reply notice Exh. 27. In that reply, he has stated that the petitioner came to reside after her marriage with the respondent in Vaishakh of 1975. She resided with the respondent for about five months and left for her parents during Diwali of that year. During her short stay with the respondent, her behaviour was highly offending. She was a nodding wife and was creating troubles in the house. The respondent intimated to her father in that behalf and asked her father to prevail upon the petitioner to behave well in the house of respondent. It is also stated in the reply that the father of the petitioner talked to the petitioner about appropriate behaviour at the house of her husband. On 24-11-1975, it is alleged in the said reply Exh. 27 that, the petitioner left with golden ornaments and cash worth Rs. 6,000/- to the house of her parents. 24. Now this broad assertion of facts need little elaboration at this stage. It will have to be stated that since 1975, the petitioner had appropriated the ornaments and cash worth Rs. 6,000/-. She left under the pretext of going to latrine on that occasion. She never turned up. She thus disappeared in clandestine manner and surprisingly enough the respondent observed silence right upto 1983. It will have to be stated that since 1975, the petitioner had appropriated the ornaments and cash worth Rs. 6,000/-. She left under the pretext of going to latrine on that occasion. She never turned up. She thus disappeared in clandestine manner and surprisingly enough the respondent observed silence right upto 1983. Had it been true that the petitioner eloped with ornaments and cash worth Rs. 6,000/ -, that she reverted to adultery and still if the husband chose to observe silence upto 1983 i.e. during the period of eight years, any talk in that behalf in the notice reply cannot carry any confidence. On the other hand, raising such a plea after lapse of eight years would clearly indicate that this is nothing but an afterthought. 25. The other allegation made in the reply is that on 26-11-1975 the respondent informed the father of the petitioner about the offending behaviour of the petitioner. He insisted that he could allow the petitioner to stay with him only on two persons assuring about her good conduct. The petitioner declined to revert back to the company of respondent on that condition and according to the respondent, she never turned up again. He has further stated that after the receipt of the notice, he made discrete enquiries and found that the petitioner was leading adulterous life and that she had become pregnant out of that mode of life. In order to conceal this pregnancy, according to the respondent, the petitioner led the claim for maintenance. 26. It would be proper at this stage to observe that in the reply notice Exh. 27, the respondent has not named Rustoom as her paramour. On the other hand, a general wild allegation is made in the reply that the petitioner No.1 had amorous relations with another person. There is also an insinuation that the petitioner was in the habit of leading adulterous life and that she persisted with that mode of life. Now this would indicate that the petitioner is known to be leading adulterous life since long and despite this fact, the respondent observed silence. He wreaks up the controversy only when he receives notice for maintenance. This would also expose the hollowness of the claim put up by the respondent. 27. Now this would indicate that the petitioner is known to be leading adulterous life since long and despite this fact, the respondent observed silence. He wreaks up the controversy only when he receives notice for maintenance. This would also expose the hollowness of the claim put up by the respondent. 27. Going to the evidence of the petitioner, she has stated that her marriage took place in 1975; that she stayed with the respondent for 7 to 8 months but during that period she was belaboured and ill treated by the respondent. For one year the relations remained good but thereafter she stayed with her parents for 2 to 3 years, obviously because of the ill treatment. When she returned back to respondent sometime in 1979 i.e. 2 to 3 years after marriage, she found that one woman by name Laxmibai was residing with the respondent. Thereafter again she was taken and she remained with the respondent for about 2 years and the third time when she was taken in 1983. 28. She has stated that she was residing with the respondent for about nine months but when the respondent again started ill treating her, she left his house and at that stage, she gave notice Exh. 27. She also filed the Hindu Marriage Petition for restitution of conjugal rights being No. 78/83 but the same was withdrawn in the month of October, because she felt that her life at the house of the respondent was insecure. Incidentally a newspaper cutting in regard to the poisoning of the wife by brother of the respondent has been produced on record. This has not been denied by the respondent. On the other hand, in the written statement, there is an allegation of the respondent that the petitioner had deliberately got the said news published in the paper known as Jai Bhawani dated 1-10-1984. The witnesses for the respondent also admit the contents of the said publication but they have branded them as false. Now if the contents of this publication are seen, they would disclose that the brother of the respondent, in order to secure watch and golden ring, poisoned his wife, who died. A criminal case was lodged against the brother of the respondent and his parents. Now if the contents of this publication are seen, they would disclose that the brother of the respondent, in order to secure watch and golden ring, poisoned his wife, who died. A criminal case was lodged against the brother of the respondent and his parents. If this be the state of affairs at the house of the respondent, it cannot be ruled that withdrawal of the Marriage Petition should be construed as a defeat for the petitioner and surrender of her claim that she was desirous of going back to the house of the respondent. 29. In the cross-examination she had indeed admitted that she is unable to give the names of the issues born to her sister-in-law or to the elder brother of the respondent. She has however denied the suggestion that this ignorance was on account of the fact that she had not resided with her husband. On these admissions the courts below felt that the petitioner never resided with her husband. On the other hand, she has affirmed that she had gone to the house of her husband thrice and this fact is manifest from the notice given by the petitioner. She had indeed given loose replies to certain questions and the courts felt that the delay in answering the questions affected the credibility of the petitioner-wife. However she has stated that in the last stay she cohabited with the husband and that she was pregnant by five months. She has again stated that after Mahalaxmi festival in 1983, the respondent started ill treating her. She has categorically denied her association with Rustoom. 30. Her father Annasaheb has stated that the petitioner was ill-treated by the respondent; that the petitioner stayed with the respondent initially for some time and thereafter she was driven out. Again she went back to reside with respondent in 1979 when it was found that the respondent had married another woman. He has further stated that lastly in 1983 she went to reside with the respondent, stayed with him for about 8 to 9 months but thereafter on account of ill treatment, she reverted back. Now in this behalf, there has been a detailed cross-examination, and it is stated by the father that three years prior to 15-10-1985, the petitioner had gone to the house of the respondent. The same tenor is to be found in the evidence of another witness Ganeshrao. Now in this behalf, there has been a detailed cross-examination, and it is stated by the father that three years prior to 15-10-1985, the petitioner had gone to the house of the respondent. The same tenor is to be found in the evidence of another witness Ganeshrao. On these admissions, the Courts have observed that the petitioner must have gone to reside with the respondent in the year 1982 which is not the case of the petitioner. In further cross-examination the father has stated that the petitioner was deserted by her husband only two months before the notice. If this fact is 'taken into consideration, it would be obvious that the respondent deserted the petitioner only sometime in the month of August or September, 1983. Undisputedly the notice is of October 1983 and in that background, the desertion must have taken place in September or October 1983. 31. Again it will have to be noticed that even in the examination-in-chief, the father has stated that the petitioner No.1 was sent to her husband at the time of Sankrant-three years ago, which would be completed in coming Sankrant i.e. Sankrant of 1986 and if that be so, the period falls in the year 1983 obviously not in the year 1982. Ganeshrao has also stated that the petitioner was driven out by the respondent and that the attempts of reconciliation had failed. The fact remains that the petitioner had gone to the respondent on 2 to 3 occasions after the marriage. Same version is rendered by Rama Gathol who had also stated that the petitioner resided with the respondent for about 8-9 months and that during Mahalaxmi festival she was driven out. Rama is also the relation of respondent and his evidence, therefore, deserves credence. When he has stated that the petitioner was residing with the respondent 2 to 3 years before the evidence in 1985, the same fact cannot be discarded lightly. In the cross-examination he has given the details about the fluctuating relations between the petitioner and the respondent. He has also described the manner and mode in which the intervention took place but the ultimate result, according to him, was that there was no reconciliation and that the petitioner was driven out by the respondent. 32. In the cross-examination he has given the details about the fluctuating relations between the petitioner and the respondent. He has also described the manner and mode in which the intervention took place but the ultimate result, according to him, was that there was no reconciliation and that the petitioner was driven out by the respondent. 32. From the evidence of these witnesses it would be clear that the petitioner had gone to the house of the respondent between 1975 to 1983. It is also established in the evidence of these witnesses that she had gone to reside with the respondent in the Year 1983 and this is again well reflected in the notice given by petitioner to the respondent. It cannot be lost sight of that Rama Baburao Gathol, who is the relation of the respondent, has also testified in favour of petitioner. 33. It is unfortunate that both the Courts below did not undertake the indepth appreciation of the evidence. They indulged in arithmetical calculations of the year without in any way probing into the real spectrum of the substantive evidence. Had they been little vigilant, it is unlikely that they would have landed on erroneous conclusion. 34. Bapurao Namdeo is the husband of the petitioner. He has taken a stand that petitioner resided with him for some time after marriage but she left him. She had illicit connection with one Rustoom Munjaji and out of that relationship, she gave birth to the petitioner No. 2. In the cross-examination he has stated that there were no disputes between himself and his wife whenever she lived with him. This admission would also indirectly show that the petitioner lived with him on more than one occasion. He has also stated that he never asked his wife to return the ornaments although she had secretly removed them. Regarding the illicit connection, he has stated that one of his relations told him that the petitioner had illicit connection with Rustoom. He is unable to name that relation and claimed that the said relation is dead. He came to know about the illicit relations 2 to 4 years before but he is unable to say as to why he failed to mention the name of Rustoom in his reply notice. His father Namdeo has also toed the line of the petitioner. The same can be said about another witness Marotirao. He came to know about the illicit relations 2 to 4 years before but he is unable to say as to why he failed to mention the name of Rustoom in his reply notice. His father Namdeo has also toed the line of the petitioner. The same can be said about another witness Marotirao. But from the evidence of the respondent, it is not at all made out that respondent had no access to the petitioner. 35. As indicated above, the non-access can well be proved only on the ground of impotency, incapacity on account of immature age or circumstances which would exclude the access namely divorce or an agreement specifically containing recital that the husband and wife had severed their relations. The oral testimony of the respondent that his wife never stayed with him after 1975 cannot be accepted in the background that there is still subsisting marriage between the petitioner and the respondent. When the petitioner claims that she had cohabited with the respondent, her say cannot be thrown overboard in the light of the allegations made by the respondent. 36. The lower courts have observed that the respondent had married Laxmibai and that he did not deny specifically to the notice given by the petitioner. I see no reason to discard this finding. 37. The conclusions which can be drawn from the aforesaid discussion is that the petitioner has been neglected and refused maintenance by the respondent; that the respondent has failed to prove non-access against the presumption under section 112 of the Evidence Act. Such non-access has to be arrived at from a very strong evidence and the guidelines given by the courts are that such non-access can be deemed to have been established in cases of impotency, immature age and under the circumstances of divorce between the husband and wife or a document containing a recital that the husband and wife had severed the relations. The courts cannot countenance the oral testimony of the husband that the petitioner never resided with him and they had no access to each other. The courts below have not taken into consideration the true perspective of section 112 of the Evidence Act and the evidence discussed above. And that is why the courts below had faltered in recording the above conclusion. 38. Regarding the maintenance, the courts have observed that the respondent's income should not be less than Rs. The courts below have not taken into consideration the true perspective of section 112 of the Evidence Act and the evidence discussed above. And that is why the courts below had faltered in recording the above conclusion. 38. Regarding the maintenance, the courts have observed that the respondent's income should not be less than Rs. 5,000/- p.a. The discussion in that behalf need not be tinkered with since it is well reasoned. Accordingly I proceed to pass the following order: 39. Rule made absolute. The writ petition is allowed. The respondent No.1 is directed to pay maintenance of Rs. 100/- p.m. to the petitioner No. 1 and of Rs. 50/- p.m. to the petitioner No. 2, from the date of this order. He shall pay costs of Rs. 500/- to the petitioners. Petition allowed. -----