JUDGMENT Present Writ Petition is filed by the husband. According to him, the learned Judicial Magistrate, [F.C.], Shevgaon, Dist. Ahmednagar committed serious mistake in law in granting monthly maintenance allowance @ Rs.200/- in favour of his wife [ Resp.No.2 ] vide Judgment and Order dated 19th December, 1997 passed in Cri. Misc. Appln. No. 80/1994 and according to the husband, the learned Revisional Court further erred in confirming the said Judgment and Order, granting maintenance in favour of the wife, by his Judgment and Order dated 24th April, 2001, passed in Cri. Revn. Application No.11/1998. [2] I have heard Mr. L.B. Pallod, learned counsel appearing for the petitioner, Mr. D.R. Jaybhar, learned counsel appearing for Resp. Nos. 2 & 3 and Mr. D.B. Bhange, learned A.P.P. for the State of Maharashtra. [3] Respondent Nos. 2 & 3 were constrained to institute proceedings U/Section 125 of the Code of Criminal Procedure, 1973 before the learned Judicial Magistrate, [F.C.], Shevgaon, Dist. Ahmednagar, since they were refused and neglected to maintain by the present petitioner and since they were unable to maintain themselves. Said proceedings was registered as Cri.M.A.No.80/1994. [4] According to the statement of facts narrated in the said Cri. Application, the marriage between petitioner – Harishchandra and Resp.No.1 - Ranjana was solemnized prior to five years of filing of the proceedings before the learned Magistrate. After the marriage, wife delivered a son by name Bharat. After the said delivery, she was subjected to ill-treatment at the hands of the husband on the ground that she is of black complexion and he wish to perform second marriage. Inspite of the same, she was cohabiting with the husband. During the said period, she delivered a second male child i.e. present Respondent No.2. After the period of one year since the birth of Resp.No.2, husband did not take care for cohabitation with wife. Attempts for cohabitation were made by the wife but, turned futile. Therefore, she filed proceedings U/Section 125 of the Code of Criminal Procedure, 1973 against the petitioner/husband and prayed that monthly maintenance allowance be granted in her favour @ Rs.500/- and also @ Rs.250/- per month for her son – Resp.No.2. [5] On being summoned, the petitioner/husband appeared before the learned Magistrate and filed his Say. According to the petitioner, the marriage between the petitioner and Resp.No.1 ceased to exist, therefore, she has no right to claim the maintenance from him. [5] On being summoned, the petitioner/husband appeared before the learned Magistrate and filed his Say. According to the petitioner, the marriage between the petitioner and Resp.No.1 ceased to exist, therefore, she has no right to claim the maintenance from him. Apart from the same, he denied the allegations of ill-treatment to Resp.No.1. He denied the paternity of Resp.No.2. According to the petitioner, Respondent No.1 left matrimonial house at the time of 'Pola' festival in the year 1991and when she was brought back by her brother, that time, he found, she was pregnant. It was suggested in the Written-Statement that, there was no sexual relationship between the parties. According to the petitioner, thereafter, Resp.No.1 admitted that she conceived from person other than the petitioner and further admitted the said fact on stamp paper. According to the petitioner, it is divorce deed however, same remained to be registered for one or other reasons. The petitioner further submitted in his Written- Statement that thereafter he filed Hindu Marriage Petition No.102/1992; wherein the learned Civil Judge, [Sr.Divn.], Ahmednagar by his Judgment and Order dated 30th June, 1994 passed a decree of divorce in his favour. [6] Parties entered into the witness-box and also examined their respective witnesses. After appreciation of the pleadings, evidence as brought on the record by the parties, the learned Magistrate recorded the findings that wife is not living in adultery, as suggested by the present petitioner. The learned Magistrate found that, Resp.No.1 wife was neglected willfully by the present petitioner and he has means to provide separate maintenance allowance to his wife and, therefore, granted monthly maintenance allowance @ Rs.200 to the wife. However, the learned Magistrate was pleased to reject the claim of Resp.No.2/son on the ground that, paternity of that boy is not proved in the proceedings. [7] Feeling aggrieved by the order granting maintenance in favour of the wife, husband preferred Criminal Revision Application No.11/1998. The learned revisional court vide his Judgment and Order dated 24th April, 2001 was pleased to reject the said Cri. Revn. Appln. Against the said concurrent findings of fact, present Writ Petition is filed. [8] Though the claim of Resp.No.2/minor son was rejected by the learned Magistrate, further proceedings were not carried by him against the rejection of his claim. The learned revisional court vide his Judgment and Order dated 24th April, 2001 was pleased to reject the said Cri. Revn. Appln. Against the said concurrent findings of fact, present Writ Petition is filed. [8] Though the claim of Resp.No.2/minor son was rejected by the learned Magistrate, further proceedings were not carried by him against the rejection of his claim. [9] The foremost contention which was submitted before this court with all vehemence by the learned counsel appearing for the petitioner is that, in view of the Judgment and Order dated 30th June, 1994 passed in H.M.P. No.102/92 in favour of the present petitioner, the learned Magistrate erred in law in awarding the monthly maintenance allowance in favour of the wife. According to him, decree passed by Civil Court is binding on the Criminal Court. To fortify his submission, he placed his reliance on the case of M/s. Karamchand Ganga Pershad & another V/s. Union of India & Ors., reported in AIR 1971 S.C. 1244 . According to him, since the decree of divorce is granted in favour of the petitioner, the learned Magistrate ought not to have granted maintenance to the wife. [10] It will be useful to quote sub section 4 of Section 125 of the Code of Criminal Procedure, 1973, which is reproduced herein-under :- 125(4) :- No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Leading in adultery is interpreted by various courts. The learned counsel for Respondents has cited case of Ram Das Gautam V/s. Sukhand, reported in 1983 Vol. II CRIME, 883. The said case was also considered by the learned Magistrate. In the said reported case, it has been observed by Their Lordship of Allahabad High Court that, what is required to prove U/Section 125(4) is that wife is living in adultery. Single act may be relevant piece but is not conclusive prove that wife is living in adultery. [11] In the present case, except the allegations made in the Written- Statement that, second son i.e. Resp.No.2 is not conceived from the present petitioner, there is no evidence brought on record to prove the adultery. Single act may be relevant piece but is not conclusive prove that wife is living in adultery. [11] In the present case, except the allegations made in the Written- Statement that, second son i.e. Resp.No.2 is not conceived from the present petitioner, there is no evidence brought on record to prove the adultery. This court is aware that factum of adultery cannot be proved by direct evidence; however, it was incumbent on the part of the husband to point out circumstances on which it can be legitimately inferred that at the time of filing of the proceeding U/Section 125 of the Code of Criminal Procedure, 1973 and during its continuance the wife was leading adulterous life. [12] The mandate of Section 125(4) is that, at the time of filing of the proceedings for maintenance and during the pendency of the said proceedings, it should be proved by the husband that, wife is leading adulterous life. In the present case, neither there is such pleadings nor their is iota of evidence to prove that particular fact. [13] The learned counsel has submitted that, in view of the fact recorded by the learned Magistrate that Resp.No.2 is not born from the relation of the petitioner and that he is not natural father of Resp.No.2; that fact itself demonstrates that, wife was leading adulterous life. However, such statement is to rejected at the thrash-hold. [14] The Judicial Magistrate, [F.C.] has observed in his judgment that the applicant No.2 is not legitimate son of the opponent and hence, he has no right to claim maintenance from the opponent. The learned Magistrate was not excepted to decide the paternity of Resp.No.2, in an application filed U/Section 125 of the Code. Without there being any material and in absence of scientific evidence brought on the record, in fact, the learned Magistrate has committed gross mistake in recording the findings that the present Resp.No.2 is not legitimate son of the Petitioner. Any person born during the continuance of a valid marriage between his mother and any man, shall be conclusive proof that he is the legitimate son of that man. Presumption is always in favour of legitimacy. The learned Magistrate in my view erred in recording such findings about the paternity. [15] The learned counsel for Applicant heavily relied upon Exh.48 which is alleged divorce deed. Presumption is always in favour of legitimacy. The learned Magistrate in my view erred in recording such findings about the paternity. [15] The learned counsel for Applicant heavily relied upon Exh.48 which is alleged divorce deed. It is not brought on record that there was custom prevailing in the community to which both belongs, in which such customary divorce is permissible. If really such custom was prevailing in their community then there was no occasion for the present petitioner to file Hindu Marriage Petition in the Civil Court, [Sr.Divn.], Ahmednagar. That itself demonstrates that there was no such custom prevailing in the community to which the petitioner and Resp.No.1 belongs. [16] Further that document cannot be considered for the simple reason, it is unregistered document. Further the wife has totally denied that she is signatory to that document. If such is the position, this document cannot be read in evidence, therefore, contention raised on behalf of the learned counsel for the petitioner is to be rejected. The learned Magistrate found that the petitioner is possessing 1 Hector = 27 Are agricultural land and taking crops like cotton etc. Therefore, the learned court has rightly reached to the conclusion that he has sufficient means to maintain his wife. The learned trial court has not granted full amount which the wife had claimed and has only partly allowed the Cri. Misc. Application by awarding monthly maintenance allowance @ Rs.200/-. The revisional court has considered all aspects in detail and has found that the Cri. Revn. Appln. needs to be rejected because the applicant therein could not demonstrate case in his favour. [17] In view my discussion in foregoing paragraphs and especially there is no perversity appearing in the Judgment and Order of courts below, I am not ready to exercise extra ordinary writ jurisdiction of this court in favour of the petitioner to upset the concurrent findings recorded by the courts below. Hence, present Writ Petition deserves to be dismissed. Hence, I proceed to pass the following order :- ORDER (i) Writ Petition is dismissed. (ii) Rule Discharged. (iii) No costs.