ORDER S. Marimuthu, J. 1. This revision is directed questioning the order passed by the Family Court, Kozhikode in M. C. No. 341 of 1992. That M. C. was filed for the minor second respondent through his mother first respondent claiming maintenance from the revision petitioner. 2. The grounds taken by respondents 1 and 2 for claiming maintenance would be briefly as follows: First respondent had married one Kunhikannan and through that wedlock, a daughter was born. Thereafter some ill feeling arose between the first respondent and Kunhikannan. Therefore, as per the customs prevailing in the Thiyya Community their marriage was dissolved some 7 or 8 years prior to the examination of PW 1 (first respondent) in the court below during the month of November, 1991. While the first respondent was residing with her brother and mother in their house which is at a distance of about 1 1/2 kms. away from the residence of Kunhikannan, she developed some illicit intimacy with the revision petitioner. On account of the illicit intimacy she conceived. In respect of her conceivement on account of her access with the revision petitioner some mediation was held in which PW 3 took the vital part, who is related to revision petitioner. The child (second respondent) was born on 26-3-1990 regarding which an entry was made in the Quilandy Panchayat. First respondent, therefore filed the above M. C. before the court below claiming maintenance for the second respondent. The above contention of the first respondent was strongly opposed by the revision petitioner in his counter by stating that the first respondent was leading an immoral life, that particularly she was having sexual contact with one Raghavan Nair and Balora Meethal Kunhikannan, that the revision petitioner advised her to disown the immoral activities and particularly with Raghavan Nair and Balora Meethal Kunhikannan, that on account of that advice, she developed a grudge against him, that on account of the above said motive she filed the petition before the court below for maintenance, that he had no sexual contact with her at any time nor was the second respondent was born to her through him, etc. 3. The Trial Court, on examining the evidence of both sides, ordered for maintenance at the rate of Rs. 200/- per month to the second respondent payable by the revision petitioner. The above order is now under challenge in this revision petition. 4. 3. The Trial Court, on examining the evidence of both sides, ordered for maintenance at the rate of Rs. 200/- per month to the second respondent payable by the revision petitioner. The above order is now under challenge in this revision petition. 4. Mr. T. G. Rajendran, learned counsel for the revision petitioner, submitted that having admitted the marriage between the first respondent and Kunhikannan it is idle on the part of the first respondent to set forth that the second respondent was not born to her through Kunhikannan, her husband, particularly when there is no satisfactory evidence to the effect that their marriage was dissolved. To strengthen the above contention he would mainly rely upon the provisions enjoined in S.112 of the Indian Evidence Act (for short 'the Act'). Per contra, Mr. Mani Prasad, learned counsel for respondents 1 and 2, would submit that there is ample evidence to the effect that the marriage between the first respondent and Kunhikannan was dissolved by the communal custom 7 or 8 years prior to the examination of the first respondent as PW 1 in the court below in the year 1991, that in addition to it there is also legal and reliable evidence that the revision petitioner had sexual contact with the first respondent and that on account of the above said sexual contact the second respondent was conceived and begotten. It is also his submission that the provision contained in S.112 of the Act cannot be availed of by the revision petitioner who is not the legally wedded husband of the first respondent. A shelter under S.112 of the Act can be taken only by one of the spouses of the marriage and not by a third party. On account of the above submissions of both the counsel, now I will examine the legal as well as the factual aspects to arrive at a decision. 5. S.112 of the Act reads as follows: "Birth during marriage, conclusive proof of legitimacy. On account of the above submissions of both the counsel, now I will examine the legal as well as the factual aspects to arrive at a decision. 5. S.112 of the Act reads as follows: "Birth during marriage, conclusive proof of legitimacy. 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 no access to each other at any time when he could have been begotten." The first limb of S.112 is conspicuously clear that when the child was born during the continuance of the valid marriage of his parents, it is a conclusive proof that the child is a legitimate one. Even after the dissolution of the marriage between the parents of the child, if the child is born within 280 days from the dissolution of the marriage, it is also conclusive proof that it is a legitimate child born to the parents. The party who is questioning the legitimacy of the child has to positively establish that the spouses had no access to each other at any time when the child would have been begotted. Therefore, in the instant case on hand as per the above statutory law in S.112 of the Act, the primary duty lies on the respondents to establish that the marriage between the first respondent and Kunhikannan was dissolved by their communal custom. If that is established, then it becomes a conclusive proof that the child was not born to first respondent and Kunhikannan. Then only that conclusive proof can be disproved by rebuttal evidence by the revision petitioner that the first respondent had access with Kunhikannan. Even in case the revision petitioner fails to establish that the first respondent had access, namely sexual contact with Kunhikannan the burden also lies on the respondent that she had sexual intercourse with the revision petitioner and on account of it the second respondent was born. Before examining the evidence let in by both sides to substantiate their respective contentions in respect of the above aspects, the settled propositions of law can be referred to herein cited by both the learned counsel. Before examining the evidence let in by both sides to substantiate their respective contentions in respect of the above aspects, the settled propositions of law can be referred to herein cited by both the learned counsel. In Perumalakkal v. Kumaresan Balakrishnan ( AIR 1967 SC 569 ) the Supreme Court has held as follows: " ..... It raises inter alia a conclusive presumption that a child born during the continuance of a valid marriage between his mother and any man is the legitimate son of that man, and this conclusive presumption can only be rebutted if it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The appellants, therefore, had to prove, as Rangaswami Chettiar would have had to prove even if he was alive when the suit was fought out in the Trial Court, that he had no access to Lakshmiammal at any time when the plaintiff respondent could have been begotten. We have already said that even according to the appellants Lakshmiammal was only living one furlong away in her father's house from where Rangaswami Chettiar was living ..." This court in Kesavan v. Krishnamma (1981 KLT SN 75 Case No. 137) has held that the evidence in support of non access must be clear, distinct, satisfactory cogent and conclusive. The presumption cannot be displaced and the contention of non access accepted on a mere balance of probability. In a case where the spouses live not far away from each other; even if there is no love lost between the spouses, access cannot be ruled out. Where the evidence in favour of non access is not satisfactory, the presumption of legitimacy has to be called in aid by the court to hold that the child is legitimate. Non access can be established by positive direct evidence or even by circumstantial evidence, provided it is of cogent and conclusive nature. In Goutam Kundu v. State of West Bengal ( AIR 1993 SC 2295 ) the Supreme Court has ruled as follows: "S.112 requires the party disputing to the paternity to prove non access in order to dispel the presumption. "Access" and "non access" mean the existence or non existence of opportunities for sexual intercourse; it does not mean actual cohabitation. In Goutam Kundu v. State of West Bengal ( AIR 1993 SC 2295 ) the Supreme Court has ruled as follows: "S.112 requires the party disputing to the paternity to prove non access in order to dispel the presumption. "Access" and "non access" mean the existence or non existence of opportunities for sexual intercourse; it does not mean actual cohabitation. It is a rebuttable presumption of law under S.112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Thus following is the position as to permissibility of bloodiest to prove paternity. (1) That courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under S.112 of the Evidence Act. (4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be completed to give sample of blood for analysis." This court in Dr. Chathukutty v. Janakiamma ( 1972 KLT 1020 ) has laid down the following: "The presumption is a rebuttable one. It is open in a particular case to show that despite the subsistence of a valid marriage the husband had no access to the woman at the concerned period and the child was born to the paramour. It is not impossible for a child to be born to the woman by her paramour when her marriage is subsisting. The mother of the woman has deposed that the husband is not heard of for more than 20 years and there is no evidence to the contra. If, in fact, the husband is alive and employed at 'Parur' as deposed by C.PW 4, there was absolutely no difficulty to get at him and clear the mystery surrounding him. The mother of the woman has deposed that the husband is not heard of for more than 20 years and there is no evidence to the contra. If, in fact, the husband is alive and employed at 'Parur' as deposed by C.PW 4, there was absolutely no difficulty to get at him and clear the mystery surrounding him. There is no legal bar to the child claiming maintenance against its mother's paramour even though the mother's marriage has not been dissolved." In A. T. Mathew v. Annamma Mathew ( 1993 (2) KLJ 1019 ) the principle laid down by this court is as follows: "Since the section (S.112) provides that if the birth of the child has taken place during the continuance of a valid marriage between the mother and any man, the legitimacy of the child is to be deemed as conclusively proved Rebuttal evidence to disprove it cannot be permitted. The only exception is by proving non access." In yet another decision Vijayan v. Karthiyani ( 1989 (1) KLT 29 ) this court has laid down the following: "To prove dissolution of marriage for the purpose of S.125 is not of that degree required in other regions. Even in cases, where the marriage subsists, paternity could be found outside marriage, when non access on the dart of the husband, and access on the part of the another is proved." On the above principles laid down by the Supreme Court as well as this court and the statutory provision? contained in S.112 of the Act, now I will examine the submissions of both the counsel. 6. It is the evidence of PW 1, the first respondent, that the marriage between her and Kunhikannan was dissolved by the custom prevailing in the Thiyya Community, 7 or 8 years prior to her examination in the court below in the year 1991. In the petition also she has stated that the marriage with Kunhikannan was dissolved 7 years ago. It is also the evidence of PW 4, brother of PW 1, that the marriage of the first respondent with Kunhikannan was dissolved 8 years prior to her examination in the court below in the year 1991 and Kunhikannan had remarried another lady through whom he has three children. It is also the evidence of PW 4, brother of PW 1, that the marriage of the first respondent with Kunhikannan was dissolved 8 years prior to her examination in the court below in the year 1991 and Kunhikannan had remarried another lady through whom he has three children. That particular portion of the evidence of PW 4 is the chief examination, as a matter of fact, was not cross examined and hence it can be rightly concluded that it stands unchallenged. The evidence of PW 2 in respect of the dissolution of the marriage of PW 1 with Kunhikannan is corroborating the oral testimony of PW 1 and PW 4. PW 1 in that regard would state that the marriage between herself and Kunhikannan was dissolved by the customary method prevailing in the Thiyya Community. That evidence of PW 1 was not cross examined to the necessary extent. PW 1 is clear in her evidence that she had sexual contact with the revision petitioner for 5 years prior to her examination in the court below. The particular portion is extracted herein. "C. P. yumayi "� Therefore, the submission of the learned counsel for the revision petitioner in meaning the above extracted portion of the deposition of PW 1 that PW 1 had no contact with the revision petitioner for 5 years is not correct. Though Kunhikannan is residing within a distance of 1 1/2 kms. from the residence of the parents of the first respondent where she is residing after the dissolution of the marriage, there is no circumstances or direct evidence to decide that Kunhikannan had access with her after the dissolution of the marriage. The fact that Kunhikannan had remarried another lady and he is having three children born to his second wife is a strong piece of evidence and circumstance in support of the case of the respondents, namely the marriage between the first respondent and Kunhikannan was dissolved. The above circumstances, as I have adverted to above, is fortified by the oral testimony of PWs 1 and 2. Hence I am fully satisfied to hold that the marriage between the first respondent and Kunhikannan was dissolved by the custom prevailing in the Thiyya Community some 7 or 8 years prior to the year 1991. 7. The above circumstances, as I have adverted to above, is fortified by the oral testimony of PWs 1 and 2. Hence I am fully satisfied to hold that the marriage between the first respondent and Kunhikannan was dissolved by the custom prevailing in the Thiyya Community some 7 or 8 years prior to the year 1991. 7. The next aspect would be whether there was evidence on the part of the respondents to the effect that first respondent had developed illicit intimacy with the revision petitioner and by such illicit intimacy second respondent was begotten. The evidence of PW 1 would show that in the absence of her brother, PW 4, and mother, she had sexual intercourse with the revision petitioner in their house. PW 4, brother of PW 1, would also speaks that the revision petitioner had illicit contact with the first respondent and it is also his evidence that on one occasion he had seen both PW 1 and the revision petitioner together in a room in his house. The evidence of PWs 1 and 4, as a matter of fact, remained unimpeachable and unchallenged. In this context it is pertinent to note the evidence of PW 3, who is admittedly related to the revision petitioner. His evidence would be that since the first respondent has conceived through the revision petitioner, a mediation was held in that regard. He also informed the father of the revision petitioner about the matter. That evidence of PW 3 is also an important circumstance to substantiate the contention of the respondents. 8. Ext. P1 dated 13-8-1991 is a birth certificate issued by Quilandy Panchayat which discloses that the father of the child is the revision petitioner. It is also a clinching circumstance in support of the case of the respondents. It is also material to have a discussion over the defence set forth by the revision petitioner. The revision petitioner has not stated any where in his counter or in his deposition that Kunhikannan, the former husband of the first respondent, had access with the first respondent. His counter statement would be that the first respondent was leading an immoral life and also she had illicit contact with one Raghavan Nair and Balora Meethal Kunhikannan and because of her contact with the above persons, the second respondent was born. His counter statement would be that the first respondent was leading an immoral life and also she had illicit contact with one Raghavan Nair and Balora Meethal Kunhikannan and because of her contact with the above persons, the second respondent was born. On the other hand the suggestion put to PW 1 by the revision petitioner would be to the effect that on account of her illicit contact with one Balakrishnan and Gangadharan, the child was conceived. Thus a contrary stand has been taken by the revision petitioner. The above Balakrishnan and Gangadharan have been examined as CPW 3 and CPW 2 respectively, who had not whispered that they have any illicit intimacy with the first respondent. In a case of this nature, no defence needs to be taken. However, the revision petitioner has taken a defence in the counter. But such defence taken in the counter is quite contra to the subsequent defence taken by him through the evidence of PW 1. That also is a strong piece of circumstance to demolish the case of the revision petitioner that he had no relationship with the first respondent. It is also the contention of the revision petitioner that since he had advised the first respondent that she should not lead such immoral life, she got infuriated and on account of it the case had been foisted against him. That motive is flimsy in nature and no man normally would accept such motive. It is paramountly clear that such flimsy motive has been set forth in order to protect himself from the real affairs with the first respondent. No doubt, the court below in the last sentence of Para.10 has observed that the marriage of PW 1 with her husband is still subsisting. That observation is quite wrong when examined along with the discussion in the same para as well as other paras of the order. Hence the above observation which has been wrongly referred to by the court below by slip of hand cannot be taken advantage of by the revision petitioner. That observation is quite wrong when examined along with the discussion in the same para as well as other paras of the order. Hence the above observation which has been wrongly referred to by the court below by slip of hand cannot be taken advantage of by the revision petitioner. On account of the above premises, I am fully satisfied to hold that the marriage between the first respondent and her former husband Kunhikannan was dissolved by the custom prevailing in the Thiyya community, that after the dissolution of the marriage Kunhikannan had no access with the first respondent, that the revision petitioner had developed illicit intimacy with the first respondent, that on account of the illicit intimacy between the first respondent and the revision petitioner the second respondent was conceived and begotten. Therefore, the order of the court below in awarding maintenance at the rate of Rs. 200/- per mensem to the second respondent is perfectly proper and valid and it needs no interference by this court on the revisional side. In the result, the revision petition is dismissed.