JUDGMENT - BRAHME P.S., J.:—Heard S/Shri Prakash Naidu, M.B. Naidu and Y.S. Jambulkar, Advocates for the applicant, S/Shri Mahesh Singh and Girish Purohit, Advocates for non-applicants No. 1 to 3 and Shri Loney, A.P.P. for non-applicant No. 4-State. 2. The applicant-Prakash Bhaskarrao Patil, who has preferred this revision application, is challenging the judgment and order dated 6-1-2000 passed by the Judge, Family Court, Nagpur, in Petition No. B-324/97 granting maintenance to non-applicants Nos. 1 to 3. The applicant and non-applicant No. 1 were married on 3-4-1993 as per Hindu customs and rites. After marriage they lived together and cohabited and non-applicant No. 2 Master Piyush Prakash Patil and non-applicant No. 3 Payal Prakash Patil are the children born to non-applicant No. 1 of the applicant. Applicant and non-applicant No. 1 lived together till October 1995. Non-applicant No. 2 was born on 24-9-1993. Non-applicant No. 3 was born on 16-9-1996. The spouses after living together till October 1995 separated and non-applicant No. 1 along with non-applicant No. 2 went to reside with her mother and applicant and non-applicant No. 1 by mutual consent executed divorce deed on 6-1-1996 but their separation did not last long as both executed a document deed on 23-2-1996 and started living together and as stated earlier, the second child was born on 16-9-1996. However, somewhere in the year 1997, again disputes cropped up between them and as per contentions of non-applicant No. 1, the applicant reached her and her children to her mothers place. There were allegations by the applicant against non-applicant No. 1 that she had illicit relations even prior to her marriage with the applicant and that the first child was born within a span of five months after the marriage. The applicant came to know about the illicit relations of non-applicant No. 1 when he found two letters Exhs. 43 and 45 in the house after non-applicant No. 1 left the house. Even as regards non-applicant No. 3, the applicant has denied the paternity on the ground that the applicant conceived when she was living separate from his since after October 1995. The applicant filed a petition bearing No. A-395 of 1997 in Family Court, Nagpur, seeking annulment of marriage and for dissolution of marriage on the ground of cruelty and that non-applicant No. 1 was living in adultery. As the applicant failed to make provisions of maintenance of non-applicant Nos. The applicant filed a petition bearing No. A-395 of 1997 in Family Court, Nagpur, seeking annulment of marriage and for dissolution of marriage on the ground of cruelty and that non-applicant No. 1 was living in adultery. As the applicant failed to make provisions of maintenance of non-applicant Nos. 1 to 3 and also denied the paternity of non-applicants Nos. 2 and 3 and levelled wild allegations that non-applicant No. 1 was living in adultery, non-applicant No. 1 filed petition for maintenance vide Petition No. E/324/1997 under section 125 of the Criminal Procedure Code. 3. The learned Judge of the Family Court decided both the petitions by common judgment delivered on 6-1-2000. The Judge has totally rejected the contentions of the applicant relating to the allegations made against non-applicant No. 1 about her character as also about she having conceived non-applicants Nos. 2 3 out of her extra marital relations. The Court also found that non-applicant No. 1 did conceive non-applicants Nos. 2 3 out of sexual relations with the applicant and that the applicant has accepted by his conduct to be the father of non-applicants Nos. 2 3. The Court found that the applicant has treated the non-applicant No. 1 with cruelty. The Court also found that it was applicant who was having extra marital relations with one Bhavana Sanait with whom he has married clandestinely during the subsistence of his marriage with non-applicant No. 1. So in keeping with these findings, the Court awarded the sum of Rs. 400/per month for non-applicant No. 1 and Rs. 300/- each per month for non-applicants Nos. 2 3 towards maintenance under section 125 of the Criminal Procedure Code. Hence, this Revision Application. 4. Shri Naidu, learned Counsel for the applicant vehemently submitted that the Court has committed an error and illegality in awarding maintenance to non-applicants Nos. 1 to 3 when on evidence on record it was established that non-applicants Nos. 2 and 3 were born to non-applicant No. 1 out of her illicit relations with one Vinod Bahal, which fact is clearly established from the letters at Exhs. 43 and 45 which the non-applicant No. 1 has admitted in her evidence to have been written by her mother and she herself. The learned Counsel pointed out from the evidence that non-applicant No. 2 was born within five months after the marriage. 43 and 45 which the non-applicant No. 1 has admitted in her evidence to have been written by her mother and she herself. The learned Counsel pointed out from the evidence that non-applicant No. 2 was born within five months after the marriage. This itself shows that non-applicant No. 1 was having illicit relations prior to her marriage and she conceived out of that and it is admitted that she conceived few months prior to marriage with the applicant. The learned Counsel also pointed out that the spouses lived together till October 1995 and then on executing a deed dated 23-2-1996 they again started living together and then second child was born on 16-9-1996. He pointed out that non-applicant No. 1 conceived non-applicant No. 3 during the period when they were living separate which goes to show that even non-applicant No. 3 is born to non-applicant No. 1 out of illicit relations or extra marital relations. The learned Counsel further submitted that this factual position further lends corroboration to claim of the applicant that non-applicant Nos. 2 3 being not the children born to non-applicant No. 1 was living in adultery. Therefore, she was not entitled to claim maintenance under section 125 of the Criminal Procedure Code. Non-applicants No. 2 and 3 being not the children born to non-applicant No. 1 out of marital relations with the applicant, the trial Court committed an error in awarding maintenance to them and more particularly for holding the applicant liable to pay maintenance to them. He, therefore, urges that the order passed by the Family Court cannot sustain in law and as such, the same should be set aside. 5. As against this Shri Girish Purohit, learned Counsel appearing for non-applicants Nos. 1 to 3 submitted that the Family Court has appreciated the evidence in correct perspective. He submitted that on evidence, it is brought on record that the applicant and non-applicant No. 1 had Courtship since 1991 which developed into love affair and then ultimately they got married on 3-4-1993. But as admitted by the applicant, during their Courtship period, they were having physical relationship clandestinely and it was as a result of this that non-applicant No. 1 became pregnant which fact was very much known to the applicant. But as admitted by the applicant, during their Courtship period, they were having physical relationship clandestinely and it was as a result of this that non-applicant No. 1 became pregnant which fact was very much known to the applicant. The conduct of the applicant after the birth of non-applicant No. 2 in not raising dispute about the paternity of the child that was born, speaks volume and the applicant continued physical relations with non-applicant No. 1 thereafter goes to show that the applicant was aware of the fact that non-applicant No. 1 became pregnant even before the marriage. The learned Counsel further pointed out from the evidence that though on account of quarrel and disputes between them the spouses separated from October 1995, but on applicants own saying, he used to visit the house of mother of non-applicant No. 1 where non-applicant No. 1 was living after separation. They had physical relations during that period and non-applicant No. 1 conceived second child and the applicant knowing fully well this factual position, did not dispute the paternity in respect of non-applicant No. 3, after she was born. The Family Court has rightly appreciated the letters at Exhs. 43 and 45. In that, the letter at Ex. 45 is said to have been written by non-applicant No. 1 as a reply to the letter at Exh. 43 which was written by mother of non-applicant No. 1. In that reply, she has nowhere admitted the correctness of the allegations made by her mother in the letter at Ex. 43 regarding her having illicit relationship with Vinod Bahal. The learned Counsel, therefore, submitted that no error much less illegality has been committed by the Family Court in awarding maintenance to non-applicants Nos. 1 to 3. 6. With the assistance of learned Counsel for the parties, I have gone through the evidence on record. The factual position as regards the marriage, the dates of birth of non-applicants Nos. 2 and 3 as also the date of marriage is not disputed. The applicant has disowned his liability to pay maintenance to non-applicants Nos. 1 to 3. 6. With the assistance of learned Counsel for the parties, I have gone through the evidence on record. The factual position as regards the marriage, the dates of birth of non-applicants Nos. 2 and 3 as also the date of marriage is not disputed. The applicant has disowned his liability to pay maintenance to non-applicants Nos. 1 to 3 only on the ground that non-applicant No. 1 was having illicit relationship, so to say extra marital relations with Vinod Bahal and both the children are born out of such clandestinely illicit relationship and, therefore, the applicant being not the father of the children, he claimed that he is not liable to pay maintenance. In addition to this, on the ground that since non-applicant No. 1 was living in adultery, she is not entitled to claim maintenance. It is true that non-applicant No. 1 conceived non-applicant No. 2 few months prior to her marriage with the applicant. This fact is crystal clear from the fact that non-applicant No. 2 was born on 24-9-1993 that is within a span of six months from the marriage which took place on 3-4-1993 but then the applicant has admitted in his evidence that he had acquaintance with non-applicant No. 1 since the year 1991 and that during the Courtship period, they developed love affair between them and non-applicant No. 1 has candidly stated on oath before the Court that during his visit to her house, they were having sexual relationship during that period and that she conceived out of that and that is how she became pregnant much prior to their marriage. It is true that the applicant has denied this fact. He, on the other hand, came up with the case that when he discovered letters at Exhs. 43 and 45, he came to know about the fact that non-applicant No. 1 was having illicit relations even prior to marriage with him with Vinod Bahal. The Court has, however, totally discarded this contention of the applicant and the Court has found from the evidence on record that the fact that non-applicant No. 1 was pregnant prior to her marriage was very much within the knowledge of the applicant and that he knowing well that she became pregnant from him, did not raise any suspicion doubting the pregnancy of non-applicant No. 1. 7. 7. After having taken into consideration the evidence on record, it is found that the applicants name has been shown as father of non-applicant No. 2 in the birth register. Not only that but the applicant accepted himself to be the father of non-applicant No. 2 by his conduct. Much has been made of the letter at Ex. 43 alleged to have been written by mother of non-applicant No. 1. Non-applicant No. 1 has denied the contents of the letter. Her case was that it was applicant who got written the letter at Ex. 43 as also Ex. 45 by bringing pressure on them and on the basis of that mutual consent, divorce deed dated 6-1-1996 was drawn and non-applicant No. 1 along with non-applicant No. 2 was sent to her mothers place. It is true that in the letter at Ex. 43, the mother of non-applicant No. 1 had raised very serious allegation against the character of non-applicant alleging that she was having illicit relations with one Bahal. The contents of this letter at Ex. 43 ought to have been proved by examining the mother of non-applicant No. 1. In the absence of that, the letter at Ex. 43 cannot be foisted on non-applicant No. 1 and no inference can be drawn that non-applicant No. 1 was having illicit relationships with Vinod Bahal as stated in the letter at Ex. 43 which is alleged to have been written by the mother of non-applicant No. 1. Atleast the letter at Ex. 43 cannot be an admission on the part of non-applicant No. 1 of her alleged illicit relationships with Mr. Bahal. That apart, the Exh. 45 which is admittedly a reply given by non-applicant No. 1 to the letter Ex. 43 goes to show that non-applicant No. 1 has controverted the allegations made against her by her mother in the letter at Ex. 43. If that is so, then the applicant has adduced no evidence before the Court to substantiate his allegations that non-applicant No. 1 was having illicit relationship much prior to her marriage with the applicant. 8. There is absolutely no evidence even to spell out that non-applicant No. 1 was having illicit relations prior to her marriage with the applicant. 43. If that is so, then the applicant has adduced no evidence before the Court to substantiate his allegations that non-applicant No. 1 was having illicit relationship much prior to her marriage with the applicant. 8. There is absolutely no evidence even to spell out that non-applicant No. 1 was having illicit relations prior to her marriage with the applicant. So it goes to show that non-applicant No. 1 became pregnant prior to her marriage out of her physical relationship with the applicant, which fact is explicit from the conduct of the applicant and admitted circumstances that the applicant and non-applicant were meeting each other for over two years prior to their marriage and that the applicant had access to non-applicant No. 1. It goes without saying that if really non-applicant No. 1 became pregnant out of illicit relations, the applicant would not have agreed for marrying with her knowing fully well the fact that non-applicant No. 1 was pregnant and then he would not have kept silent but denied her pregnancy and would not have continued relationship with her after marriage till the first child was born. Therefore, this conduct of applicant clinchingly goes to show that non-applicant No. 1 became pregnant out of physical relationship between them since prior to their marriage and that is why the silence on the part of the applicant after marriage was plausible and probable. Therefore, there is no manner of doubt that the applicant has taken the false plea of denying the paternity of non-applicant No. 2 only on the basis of factual position that non-applicant was born within a period of six months after the marriage. The trial Court has committed no error in rejecting that contention of the applicant. In my opinion, the view taken by the trial Court in respect of the paternity of non-applicant No. 2 was well justified on the basis of evidence on record as also circumstances attending the case. 9. So far as paternity of non-applicant No. 3 is concerned, the trial Court has placed reliance on the version of non-applicant No. 1 and also the contents of the letter at Ex. 45 wherein the applicant has refuted all the allegations of illicit relations made against her by her mother in the letter at Ex. 43. In her evidence she has stated that from 3-4-1993 to 4-5-1997 they resided together. 45 wherein the applicant has refuted all the allegations of illicit relations made against her by her mother in the letter at Ex. 43. In her evidence she has stated that from 3-4-1993 to 4-5-1997 they resided together. It is admitted that both the children are born to non-applicant No. 1 during subsistence of marriage. According to non-applicant No. 1, the applicant made non-applicant No. 1 and her mother to right letters so as to create ground for divorce and that is why in her evidence though she admitted the factum of letters, she did not admit the contents thereof. Non-applicant No. 1 was not cross-examined by the Counsel for the applicant on this point. Therefore, as observed by the Court, it is believable that the contents of the letters are got written due to pressuring tactics adopted by the applicant. Non-applicant No. 1 in her evidence also stated that she found some letters written to the applicant by one lady named Bhavana Laxmanrao Banait. These letters are marked as Articles F, G, H, I, J K respectively. When non-applicant No. 1 asked the applicant about these letters, he beat him and told that she has no right to ask about the same. She further stated that on 31-12-1995, the said lady came to her place and threatened her that if she did not break her relationship with the applicant, she would commit suicide and therefore, she went to her mothers place and resided there for 4-5 days. Then admittedly a mutual divorce deed dated 6-1-1996 was drawn by the parties. She has stated in her evidence that even after execution of this divorce deed, the applicant used to come to her mothers place and she came to know that she had conceived and that thereafter both of them mutually decided to reside together and cancelled the deed dated 6-1-1996 by executing another deed by mutual consent for settlement. It has come in her evidence that since thereafter they lived together and also cohabited. Her evidence has not been shaken in this respect. The applicant does not dispute the execution of mutual consent divorce deed dated 6-1-1996 as also subsequent deed of mutual consent for settlement where under the applicant and non-applicant No. 1 started residing together. 10. It has come in her evidence that since thereafter they lived together and also cohabited. Her evidence has not been shaken in this respect. The applicant does not dispute the execution of mutual consent divorce deed dated 6-1-1996 as also subsequent deed of mutual consent for settlement where under the applicant and non-applicant No. 1 started residing together. 10. It is significant to note that the applicant did not dispute the fact that he was well aware of the fact that non-applicant No. 1 was pregnant for the second child when the second deed of settlement came to be drawn by the spouses. Therefore, the trial Court was justified in accepting the version of non-applicant No. 1 that non-applicant was conceived for second child out of physical relationship with the applicant. If really conception at the time of second child was out of illicit relations of non-applicant No. 1, in all probability, the applicant would not have accepted non-applicant to his house and resumed cohabitation. This, therefore, reinforces and also lends assurance to the settlement of non-applicant No. 1 that inspite of there being separation between them which lasted for short period, the spouses had continued cohabitation at times during his visits to the house of non-applicant No. 1. Since the second child was born on 16-9-1996, it is crystal clear that non-applicant No. 1 must have conceived the child somewhere in the month of December 1995 which is certainly prior to divorce deed dated 6-1-1996. Therefore, even if it is accepted that because of the divorce deed dated 6-1-1996 there was dissolution of marriage, the conception of non-applicant No. 1 for the second child was certainly during the subsistence of marriage. It is made clear that in the eyes of law, there is no dissolution of marriage by execution of a deed of divorce even by consent of the spouses. With this evidence, as rightly accepted by the trial Court, there is no manner of doubt that the applicant was the father of the second child i.e. non-applicant No. 3. Therefore, the Family Court was right in granting maintenance to non-applicants Nos. 1, 2 and 3. 11. With this evidence, as rightly accepted by the trial Court, there is no manner of doubt that the applicant was the father of the second child i.e. non-applicant No. 3. Therefore, the Family Court was right in granting maintenance to non-applicants Nos. 1, 2 and 3. 11. The learned Counsel for non-applicant No. 1 has rightly placed reliance on the decision in 2004(1) Bom.C.R.(Cri.) (S.C.)157 (Amina-Appellant v. Hassn Koya Respondent)1, in which the Apex Court while considering the claim by wife for maintenance under section 125 of the Criminal Procedure Code when husband admitted factum of marriage but he claimed that the wife was already pregnant at the time of marriage, which she conceived from him and, therefore, the marriage was invalid and void and as such he was not liable to pay maintenance. The husband further contended that child was not born to the wife through him and, therefore, he had no obligation to pay any maintenance qua the child. In that case, the Magistrate held the marriage to be valid and directed the payment of maintenance by the husband to the wife. However, no maintenance was allowed for the child because the child was believed to be not fathered by the husband. The Sessions Judge, however, held that the marriage was invalid and that consequently there was no obligation to pay any maintenance. High Court dismissed revision against the order of Sessions Judge. The Apex Court observed that there was basic fallacy in the judgment of both the courts below when both the courts below accepted the version of respondent that the applicant-wife concealed the factum of pregnancy from him and on that ground the courts below held that the marriage was void. The Apex Court observed that it is very difficult to believe that a woman who is five months pregnant will be able to conceal the pregnancy from the husband. Therefore, the Apex Court observed that it cannot be accepted that the husband respondent did not know at the time of marriage that the appellant was already pregnant and, therefore, the marriage cannot said to be illegal or void. As to the entitlement of claim for appellant wife, the Apex Court observed that the conduct of the respondent-husband at the relevant time was that he went through the marriage, he did not raise any objection even after the marriage. As to the entitlement of claim for appellant wife, the Apex Court observed that the conduct of the respondent-husband at the relevant time was that he went through the marriage, he did not raise any objection even after the marriage. He was present at the time of delivery of the child and he gave his own name as the name of the father of the child for official record and even thereafter for nearly four years he went on along with the marriage and brought up the child while treating the appellant as his wife. The Apex Court observed that if what respondent-husband was saying was true, a normal reasonable person would have immediately turned out the wife from his house on coming to now of the fact of pregnancy. The Apex Court further observed that nobody will continue with such a marriage for four and half years, specially when a child was born just after four months of the marriage. Therefore, the Apex Court said that when it comes to the question of the paying maintenance the respondent was saying that the marriage was invalid and the child was not his. That is why, the Apex Court did not agree with the findings recorded by the courts below and setting aside the findings, maintenance was granted to the child. This decision applies in all force to the case before hand. It is equally so when admittedly the applicant was knowing at the time of marriage that non-applicant No. 1 was pregnant at the time of marriage that non-applicant No. 1 was pregnant at the time of marriage. It is not his case that the fact of non-applicant No. 1s pregnancy prior to the marriage was concealed by her from him. 12. The learned Counsel for respondent No. 1 has also placed reliance on the decision in 1985(1) D.M.C. 430 of the Madras High Court, (Udaykumar-Petitioner v. R. Kalavathi and another-Respondents)2, wherein in the matter of claim for maintenance under section 125 of the Criminal Procedure Code for wife and her child, the husband alleged that the wife has no access to him and, therefore, the child could not have been born to him. The Madras High Court found that when there is no evidence to support the said allegation and the marriage is subsisting, there would be presumption in the case of child born during the subsistence of marriage. The Madras High Court found that when there is no evidence to support the said allegation and the marriage is subsisting, there would be presumption in the case of child born during the subsistence of marriage. It is further held that the wifes claim for maintenance though she refused to live with husband as the husband has remarried, she is entitled to live separately and claim maintenance. In the case before hand, when on the evidence of non-applicant No. 1 there was access to applicant to the wife and the marriage was subsisting, the applicant cannot deny his liability to pay maintenance to the children. 13. Shri Naidu, learned Counsel for the applicant vehemently submitted that when non-applicant No. 1 was guilty of living in adultery, she is not entitled to claim maintenance in view of provisions of sub-section (4) of section 125 of the Criminal Procedure Code. Under sub-section (4) of section 125 of the Criminal Procedure Code, what disentitles wife from claiming maintenance from her husband is the fact that she is living in adultery. But living in adultery is one thing and committing an act of adultery is another thing. Sub-section (4) of section 125 of Criminal Procedure Code does not say that the wife is not entitled to receive the allowance if she has committed an act of adultery. On the other hand, it lays stress on the fact that the wife is living in adultery which indicates that the wife is habitual in committing acts of adultery and unless this fact is established by evidence or surrounding circumstances, a solitary incident in isolation on the part of the wife would not disentitle her to claim maintenance. In the case before hand, the applicant never claimed that the wife non-applicant No. 1 was living in adultery and that too during the subsistence of marriage. That apart, the Family Court from the evidence on record found that applicant has failed to establish that the wife has committed an act of adultery. There is absolutely no evidence or even any material on record even to suggest that non-applicant No. 1 committed an act of adultery. It is found that the applicant has made reckless and unfounded allegations against non-applicant No. 1. Therefore, the Family Court was right in awarding maintenance to non-applicant No. 1 also. 14. There is absolutely no evidence or even any material on record even to suggest that non-applicant No. 1 committed an act of adultery. It is found that the applicant has made reckless and unfounded allegations against non-applicant No. 1. Therefore, the Family Court was right in awarding maintenance to non-applicant No. 1 also. 14. In the result, I do not find any merit and substance in the present criminal revision application. There is absolutely no reason to interfere with the order passed by the Family Court. The criminal revision application is, therefore, dismissed. Application dismissed. -----