JUDGMENT D.P.S. Chauhan, J. 1. It is a case where the wife has filed a suit under Section 13 of the Hindu Marriage Act for dissolution of marriage and for grant of maintenance allowance to her daughter Ku. Shweta. The suit was registered as Civil Suit No. 31-A/92. The Trial Court decreed the suit and granted the decree for divorce in favour of the plaintiff Smt. Krishna Tiwari against her husband Shankerlal. Court further granted maintenance to Ku. Shweta, who is a minor girl, at the rate of Rs. 350/-per month till she attains majority, vide judgment and order dated 23.12.1993. 2. The present appeal is directed against the aforesaid judgment and decree. 3. Heard the learned Counsel for the appellant and learned Counsel for the respondent. 4. Learned Counsel for the appellant submitted that so far as the decree for dissolution of marriage is concerned it is accepted by the appellant and that portion is not appealed against. The appellant has got the grievance against the decree so far as it relates to grant of maintenance allowance to Kumari Shweta. Learned Counsel further submitted that in paragraph 3 of the plaint it is stated that since after Nov. 1985 the appellant defendant stopped coming to her. In para 11 of the plaint it is state that plaintiff gave birth to a girl child on 29th Dec., 1986. He further invited the attention of the Court to the written statement and specially to paragraph 4 where it was admitted by the defendant that since after November, 1985 he stopped going to her wife. He further stated in paragraph 11 of the written statement that the fact as stated in the plain that plaintiff gave birth to a girl on 27.1.1987 came to his knowledge for that first time after receipt of the notice of the plaint from the Court. Thereafter the appellant made enquiry from Gupta Nursing Home, Jabalpur and came to know from there the girl took birth on 19.12.86 and the same day she got T.T. Operation. On the basis of the pleadings, amongst other the issue framed was : Kya Avedak Krishna Tiwari ne Anavedak Shankar Lal ke Sath Vivah ke pashchat, kisi anya puroosh ke sath mehtun kiya ? On the basis of the pleadings, amongst other the issue framed was : Kya Avedak Krishna Tiwari ne Anavedak Shankar Lal ke Sath Vivah ke pashchat, kisi anya puroosh ke sath mehtun kiya ? The question involved is that the plaintiff made the statement before the Court as P.W. 2 and in her statement she in paragraph 3 has stated that after November, 1985 the defendant stopped coming to her but even thereafter she used to go to the house of the defendant. In paragraph 4 of her statement it has been stated that on 20th December, 1986 Kumari Shweta daughter of defendant took birth. In the statement nowhere it has been stated that the girl was conceived from the defendant. It was only in the cross-examination she denied that after 1985 there were no relationship of husband and wife. The relevant date has not been disclosed. The presumption of birth is contained in Section 112 of the Evidence Act and the learned Counsel for the appellant submitted that no presumption can be drawn regarding the legitimacy as it has not been established by the evidence of the plaintiff that the plaintiff and defendant has access to each other after November, 1985 when the child could have been begotten. The parties were at varience in the plaint and in the written statement and the relief was for maintenance to the daughter. The defence case set up was that the child was not begotten from the defendant. 5. The Court has not framed any such issue and in the absence of or issue no evidence was led. The Issue No. 4 was entirely different and that had no relevance so far as the question of legitimacy of the child is concerned. The sexual relationship of the plaintiff with any other person at any time subsequent to the conceivement from the defendant has no relevance so far as the legitimacy of the child was concerned. 6. In view of above, I am not satisfied on the issue and consider it a fit case for remand for framing the issue regarding legitimacy of the child and deciding the same after giving proper opportunity to both the sides. 7. In view of above, the appeal is allowed only to the extent so far as it relates to grant of maintenance to Kumari Shweta Tiwari. 7. In view of above, the appeal is allowed only to the extent so far as it relates to grant of maintenance to Kumari Shweta Tiwari. The case is remanded to the Trial Court for the limited purpose and the Trial Court shall frame a clear issue and take evidence on the issue and decide the same on merit. In the circumstances of the case the parties shall bear their own costs. The parties shall appear before the concerned Court on 28th February, 1993. The Lower Court record shall be transmitted to the Court below immediately. 8. Certified copy of this judgment may be given to the parties within three weeks on payment of usual charges.