Order. The first petitioner before this Court is the wife and petitioners 2 and 3 are her minor children, aged 2 years, and 7 months respectively when the petition was filed. Respondent is her husband. The petitioners filed an application under section 488 of the Code of Criminal Procedure claiming maintenance from the respondent. At the trial, after recording the evidence of 6 witnesses on behalf of the petitioners and of 7 witnesses on behalf of the respondent, the learned Magistrate held that the petitioners had failed to establish refusal or neglect by the respondent to maintain them. He also held that the evidence let in on behalf of the respondent indicated that there was some basis to say that the first petitioner had crossed the bounds of decency in behaving with one Gopalaswamy although it may fall short of proof of adultery or unchastity on her part. He rejected the application for maintenance filed by the petitioners. In this revision, the petitioners challenge the said order passed by the learned Magistrate. Sri Satyanarayana, learned Counsel appearing on behalf of the petitioner, contends that the respondent has made serious allegations of unchastity against the 1st petitioner. He has made a false charge that petitioners-2 and 3 were not born to him, but were born as a result of the adulterous intercourse with one Gopalaswamy, who was a tutor of her two elder sons Jagannath and Srinath. These charges have been held to have not been proved by the learned Magistrate. Hence this would amount to cruelty entitling petitioner-1 to live separately and claim maintenance from the respondent. Sri Satyanarayana has relied strongly on a number of decisions of the various High Courts including the decision of this Court in Ananth v. Lakshmi1, in support of his said contention. It has also been argued that the learned Magistrate never adverted to the question of maintenance of petitioners 2 and 3, the minor children who were admittedly in the custody of petitioner-1. The Court below has also failed to advert to the presumption under section 112 of the Indian Evidence Act that a person born during the continuance of a valid marriage shall be conclusive proof that he is the legitimate son, unless it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. The respondent has clearly taken the stand that petitioners-2 and 3 were not born to him and were born as a result of illicit intimacy of petitioner-1 with Gopalaswamy. This charge has not been substantiated by him. His evidence is that he and the petitioner had abstained from sexual intercourse from May, 1961 with a view to limit the family and that thereafter only once in April, 1964, petitioner-1 had forced him to have sexual intercourse with her, obviously because she had then conceived the third child (2nd petitioner) through Gopalaswamy. Thereafter he had absolutely no such intercourse with the petitioner at any time. It may be mentioned that the third child (2nd petitioner) was born on 1st December, 1964 and the fourth child (Petitioner-3) was born on 28th June, 1966. It is not disputed by the respondent that he lived together with the petitioner-1 in the same house, till 21st December, 1966. The respondent has also conceded that he got the 1st petitioner admitted to the hospital for delivery of the fourth child although he knew that it was born of illicit intercourse. He also admits that he has claimed reimbursement of medical charges under Exhibits P-1 to P-3 on account of delivery of the third and fourth children, from the Coffee Board where he was employed. It is difficult to believe the respondent’s case that though he had absolutely no sexual intercourse with petitioner-1 from April, 1964, and though he knew that the last child which was born on 28th June, 1966, was not his child, he continued to live with petitioner-1, and made arrangements for the delivery of the child. The respondent’s own case is that he and his wife lived together in the same house till 21st December, 1966. The allegation that the third and the fourth child (petitioners-2 and 3) were not born to him, seems to have been made by the respondent as an after-thought to defeat the claim of maintenance made by the petitioners. The evidence let in by the respondent does not in any way establish the charge of illicit intimacy of petitioner-1 with Gopalaswamy. Following the various decisions of the other High Courts, this Court in Ananth v. Lakshmi1, has laid down that attribution of immorality falsely to a wife would be a good ground for separate maintenance and for her refusal to stay with the husband. Following the various decisions of the other High Courts, this Court in Ananth v. Lakshmi1, has laid down that attribution of immorality falsely to a wife would be a good ground for separate maintenance and for her refusal to stay with the husband. As in the instant case, in Ananth’s case1also, the husband made the allegation that his wife was living in adultery and that the son was not born to him. It was also contended that the learned Magistrate was wrong in holding that in those circumstances the wife had a good ground for refusing to stay with her husband, when he made an offer to take her back and live with her. This Court in paragraph 5 of the order, observed as follows: “The contention of the learned Advocate is that the view taken by the Magistrate that attribution of immorality falsely to a wife would be a good ground for separate maintenance and for her to live separately was erroneous. There are a number of decisions which support the views taken by Magistrate. Mention may be made of the decision of the Madras High Court in Kamala v. Venkatarami Reddy2 in which it has been laid down that ‘a deliberate attribution of immorality falsely to a wife will certainly fall under the definition of legal cruelty and entitle a wife to live separately from such a husband and claim separate maintenance’.” Though this decision was cited before the learned Magistrate, he has failed to consider the matter properly. I am of the opinion that the false charge made by the respondent that that petitioners-2 and 3 were not born to him would fall within the definition of legal cruelty and entitled petitioner-1 to live separately from the respondent and claim maintenance from him. Sri Satyanarayana is also right in contending that the learned Magistrate has totally failed to consider the question of the maintenance of the minor children, petitioners-2 and 3, who were 2 years, and 7 months’ old respectively when the petition was filed. Being infants, obviously the mother is the best person to have the custody of the children, and as the respondent had not claimed the custody of those children, he is bound to maintain them. Being infants, obviously the mother is the best person to have the custody of the children, and as the respondent had not claimed the custody of those children, he is bound to maintain them. Under section 112 of the Evidence Act, the birth of the children during the continuance of the marriage is conclusive proof of their legitimacy unless the respondent had established that he had no access whatever to his wife during the relevant period. As has been pointed out in Raghavan Pillai v. Gourikutty Amma1, the presumption under section 112 can be rebutted by the evidence that the husband and wife had no access to each other when the child was begotten and such evidence must be strong, satisfactory and conclusive. Here, as stated already, respondent had been living with the 1st petitioner in the same house till 21st December, 1966 and the presumption under section 112 has not beer rebutted by the respondent. For the reasons mentioned above, I am of the opinion that the order of the learned Magistrate cannot be sustained and has to be set aside. It is not possible to agree with the contention of Sri Devaraj, learned Counsel appearing on behalf of respondent, that the evidence let in by the respondent, supports his plea that the petitioner was in illicit intimacy with Gopalaswamy. Prabhavathi v. Radhey Shyam2, cited by Sri Devaraj has no application, as the facts stated in that case were totally different from the facts of this case. The said decision itself states that false allegation of unchastity made by the husband with a view to defeat the wife’s genuine claim for maintenance will certainly give a reasonable ground to the wife to refuse to go and live with the husband and claim separate maintenance. I am therefore of opinion that there is noforce in the contention advanced by Sri Devaraj. The respondent has admitted that he is drawing a basic salary of Rs. 216 and he is getting a total sum of Rs. 375 inclusive of all allowances. Out of this amount, he has to support himself and his first two sons, Jagannath and Srinath, who are with him. As they are grown up he has also to spend on the education of those two sons. 216 and he is getting a total sum of Rs. 375 inclusive of all allowances. Out of this amount, he has to support himself and his first two sons, Jagannath and Srinath, who are with him. As they are grown up he has also to spend on the education of those two sons. It is also submitted by Sri Devaraj that petitioner-1 is now employed as a teacher in a Primary School and as such she is not entitled to any maintenance. Sri Satyanarayana, appearing on behalf of the petitioners, does not admit this fact and states that he has no information about this. There is no evidence onrecord to show that petitioner-1 is employed as a teacher and is earning a living. Taking into consideration that petitioners-2 and 3 are small children and there is no need to spend on their education, and considering all the circumstances of the case, I think it reasonable to award a sum of Rs. 25 per month to each of the petitioners-1, 2 and 3 for their maintenance. In the result, this petition is allowed and the respondent is directed to pay to the first petitioner, a sum of Rs. 75 per month as maintenance for herself and her two children, petitioners-2 and 3, from 23rd May, 1968. Time of 3 months is given to the Respondent to pay the arrears of maintenance ordered. S.V.S. ----- Petition allowed.