- (1.) KUNDAN Singh, J. This revision is directed against the judgment and order dated 19-9-83 of Hnd Additional Sessions Judge, Farrukhabad, in Criminal Revision No. 47 of 1983. The opposite party Smt. Maya Devi moved an application under Sec tion 125, Cr. P. C. claiming Rs. 500 per month as maintenance from the applicant. The learned Magistrate by his order dated 14-4-83 rejected the application mainly on two grounds. Firstly,that opposite party Smt. Maya Devi has neither alleged nor proved that he was unable to maintain her self and secondly,that she was leading adul terous life with one Lakhan Singh and she gave birth to a child which was aged about two years and another was a foetus of 8 months in womb.
(2.) BEING aggrieved, the opposite party preferred the revision before the learned Sessions Judge against the judgment and order of learned Magistrate dated 14-4-83. The learned Sessions Judge, after examin ing the evidence on record, came to the conclusion that inferences drawn by the learned Magistrate were wrong and the Magistrate has committed error in record ing the finding that Smt. Maya Devi was unable to maintain herself and leading adul terous life and allowed the revision direct ing the applicant to pay a sum of Rs. 100 per month as maintenance to opposite party Smt. Maya Devi. Learned Counsel for the applicant submitted that the applicant is still ready to maintain her, if she lives with him. The con tention of the learned Counsel has no force in view of the fact that the applicant had alleged that the opposite party was leading adulterous life with one Lakhan Singh. The allegation of imputation to adulterous life by the applicant is sufficient for the opposite party to live separately from the applicant. The learned Counsel for the ap plicant demonstrated that the opposite party had admitted that she had a child of two years in her lap and another foetus of 8 months in her womb. She was living with one Lakhan Singh; hence it will be presumed that the child in her lap and the Pregnancy of 8 months were from Lakhan ingh, but this contention has no force inas much as under Section 112 of Evidence Act prescribes the presumption 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 un married, 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 eacn other at any time when he could have been begotten. The applicant has failed to prove the fact that he had no access to the opposite party. On the other hand, he himself stated that he had gone to his wife's parental house to take her. It is not such a case that the other party was living in foreign country and had no access to go each other. Under the presumption of Sec. 112 of the Evidence Act, it will be presumed that the child in lap and the child in womb,were of the applicant and not from any other person.
(3.) SO far as the finding regarding in ability of maintenance by (Smt. Maya Devi) opposite party is concerned, the applicant has not alleged any source of income of the opposite party to maintain herself. Her claim cannot be refused on the ground that she had not alleged or she had not proved that she was unable to maintain herself. It will be established from the evidence on record that she was unable to maintain her self or not. In the instant case, there is no evidence on record to show that the op posite party had any source of income to maintain herself unless it is established that she had a source of income it will be presumed that the opposite party was un able to maintain herself. The learned Magistrate was not justified in holding otherwise. On the contrary, the learned Ses sions Judge was fully justified in holding that she was unable to maintain herself. The learned Counsel for the ap plicant further submitted that the learned Sessions Judge had no jurisdiction to inter fere with the finding of fact in revisional jurisdiction. At the most he could have directed the learned Magistrate to consider the evidence on record and to decide the case in the light of observation, if any made. It is true that the Sessions Judge has reversed the finding recorded by the Magistrate but those findings are based on wrong inferences drawn by the learned Magistrate and the learned Magistrate was not justified to record the finding of fact on the basis of wrong inference drawn out of the evidence on record.;