T.K. Joseph, J.
1. This criminal revision petition arises from an application made by respondents 1 and 2, mother and child, against the petitioner, alleging that he had married the first respondent in Karkadagam 1129 and that the second respondent was born in wedlock. The respondents alleged that the petitioner was co-habiting with the first respondent from Edavam 1129 and that the second respondent was born as a result of such union. On the allegation that the petitioner had abandoned the respondents from Makaram 1131 the respondents claimed maintenance for both.
2. The petitioner contended that the first respondent was the lawfully wedded wife of one Raghavan Pillai and that the marriage between them was subsisting. He denied the averments made in the petition that he co-habited with the petitioner or married her in Karkadagam 1129. The allegationregarding the paternity of the child was also denied. On the date of final hearing in the trial court, the first respondent withdrew her claim for maintenance for herself, in view of the subsistence of hermarriage to Raghavan Pillai. The trial Magistrate held that the petitioner was the father of the second respondent and he awarded maintenance to the second respondent at the rate of Rs. 8/-per month from the date of the petition. The petitioner who unsuccessfully moved the District Magistrate in revision, has preferred this revision petition.
3. The main points urged on behalf of the petitioner are (1) that the courts below have notconsidered the presumption arising under Section 112 of the Evidence Act and (2) that the decision is based on hearsay evidence.
4. As regards the first point it has to he stated that the respondents came to court with thecase that the first respondent was the lawfully wedded wife of the petitioner. Though the fact of the subsistence of the first respondent's marriage to Raghavan Pillai was suppressed in the petition, it was admitted by her in cross-examination that the said marriage had not been dissolved. It was on account of this admission that she later Withdrew her claim for maintenance. Section 112of the Evidence Act provides that birth during Marriage is conclusive proof of legitimacy of achild.
The section reads as follows:
'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.'
This presumption can, no doubt, be rebutted by evidence that the husband and wife had no access to each other at any time when the child could have been begotten. That such evidence must be 'strong, distinct, clear, satisfactory and conclusive' has been held by courts in England and India. The leading cases on the point have been referred to in Janamma v. Kuttappa Panicker, 1959 Ker LT 71: 1959 Ker LR 427: (AIR 1959 Kerala 366) and I do not therefore propose toover the same ground. Reference may however be made to the decision in G. R. Sane v. D. S. Sonavane and Co., AIR 1946 Bom 110. It was held that in that case that proof per se that the woman was living with the paramour was no evidence of non-access by the husband. So far as this case is concerned there was not even an allegation in the petition that Raghavan Pillai, the husband of the first respondent, had no access to the first respondent during the relevant period.
In view of the suppression of any reference to the marriage of the first respondent to Raghavan Pillai in the petition, it could not be expected that a plea of non-access would be raised in the petition. The first respondent who admitted the subsistence of her marriage to Raghavan Pillai did not say that Raghavan Pillai had no access to her during the relevant period. No doubt, there is some evidence in the case to show that Raghavan Pillai has been living with another woman for a number of years. This does not amount to clear proof of non-access. The mere fact that the husband and wife are living separately in two different houses is insufficient to prove non-access. The question whether the husband and wife had access to each other is one of fact and the party interested indenying the legitimacy of the child must set up a plea of non-access and prove the same.
5. Learned counsel for the respondents contended that the presumption under Section 112 of tha Evidence Act would arise only in a case in which the question of legitimacy is raised for the purpose of inheritance by succession and that so far as an application under Section 488 is concerned, the same has to be decided on the evidence and probabilities. I do not think this narrow construction is justified. Law does not recognise a distinction between legitimacy for purposes of succession or maintenance. Reliance was also placed on the decision in Sree-nivasan v. Kirubai Ammal, AIR 1957 Mad 161) in which it was held that it was not necessary in every case that a marriage should be dissolved before a paramour could be held to be the father of the children and that it the paramour was keeping the woman ad his concubine after driving the husband out of the house and rigidly keeping him from approaching his wife, the paramour may be held to be the father of the children even though the marriage be not dissolved This decision has no application to the facts of this case. Another point raised by the respondents' counsel is that the question whether the petitioner is the father of the second respondent is one of fact and that the court below having entered a finding thereon based on evidence, this court ought not to interfere with the same in revision. Ordinarily the revisional court does not interfere with findings of fact but when such at finding is arrived at disregarding fundamental rules of evidence, interference is called for.
6. Learned counsel for the petitioner also pointed out that the finding of the trial court that the petitioner was the father of the second respondent was based on hearsay evidence, P. Ws. 3 and 4 stated that they had no direct knowledge of the matter but that they have heard others including, the mother of the first respondent saying that the petitioner was the father of the child. It is based, on such evidence that the trial magistrate has come to the conclusion regarding the paternity of the child. This is an additional reason for interference in revision.
7. In view of the conclusions reached above it cannot be held that the respondents have succeeded in proving that the petitioner is the father of the second respondent. It follows that the order awarding maintenance to the second respondent must be quashed and I order accordingly. The criminal revision petition is allowed and the application for maintenance is dismissed.