Heard. On 4th June, 2003, Rule was issued and R. and P. was called.

2. Learned JMFC, Udgir, by order dated 11.7.2001 awarded maintenance allowance @ Rs. 300/- to the petitioner wife and at the same rate to the children - Namrata and Aakash. Same was questioned by Deelip, the Respondent before the learned Additional Sessions Judge, Udgir in Criminal Revision No.134/2001. The learned Additional Sessions Judge allowed the revision and set aside the order dated 11.7.2001 and hence the petitioner wife is before this Court.

3. The Respondent Deelip has disputed his matrimonial relation with Pushpa and also disputed paternity to the children Namrata and Aakash. Learned JMFC, Osmanabad disapproved the same and awarded maintenance. However, learned Additional Sessions Judge held that marital tie of Smt. Pushpa with her earlier husband Somnath Shahir, was not legally terminated in a divorce or otherwise; and secondly, she could not stake claim to maintenance. He refused maintenance to the children on same count.

4. In order to establish the marital relations before the learned JMFC, evidence of petitioner, as wife; her father Amrut, Tukaram and Manoj, who attended the marriage held at shankarappa Math, Udgir, was recorded. In the cross-examination, these witnesses were asked about Somnath or his whereabouts, it was in clear tune and tone informed, that Somnath was no more. Mere assertion by Deelip that Somnath was seen by him, could not be a ground for the learned Additional Sessions Judge to have accepted the same and disbelieved narration by four witnesses.

5. The photographs of the marriage were produced, exhibited. The letters sent by Deelip to his wife were shown to him in cross-examination, he disputed the same. Telegram was sent on 24.11.1999 from Barshi to the petitioner to cohabit. The telegram could not have been disputed, however, no care was taken for its appreciation. Dr. Hemant Sane had examined Aakash, the child, carried by the couple Pushpa and Deelip. The child is named by father Deelip. He was six days old at the material time. The birth of the child was at the maternity home of Dr. Sane. Medical prescriptions are also placed on record and exhibited.

6. The learned Additional Sessions Judge, basically missed track of the matter, as it was a proceeding under Section 125 Cr.P.C. and not a civil dispute in respect of declaration of status of parties, where strict proof of the status is a must.

7. Learned Counsel for the husband/respondent -Deelip has placed reliance to the judgment of the Hon'ble Supreme Court in the matter of Shyamlal Alias Kuldeep Vs. Sanjeev Kumar and Ors. AIR 2009 SC 3115. It was a case, where status between the plaintiff and Defendant No.4, was not in controversy. The only controversy was, during continuation of a valid marriage with deceased -Balak Ram, whether the plaintiff and Deft.No.4 were born to Smt. Durgi and the Apex Court held, -"since there was access to the couple immediately preceding birth of children, the legitimacy of the children, born out of continuation of the marriage, could not be treated to be void. Law presumes against vice and immorality in a civilized society. It is imperative to presume legitimacy of a child born during continuation of a valid marriage and, therefore, parents had access to each other. This judgment will not be applicable to the case propounded by respondent - Deelip.

Learned Counsel has further placed reliance to the judgment of the High Court of Himachal Pradesh in the matter of Jit Ram Vs. Smt. Cheli and Anr. reported in 1989 Cri.L.J. 1852, in respect of application for maintenance of a child, alleged to have been begotten from non-applicant in that case. There was no evidence that applicant had taken divorce from her husband and no access to him.

8. The legal position is explained by the Hon'ble Supreme Court in the matter of Pyla Mutyalamma @ Satyavathi Vs. Pyla Suri Demudu & Anr. 2011 DGLS (Soft) 696 = 2011 (9) Scale 403. It was observed