The presumption under Sec. 112 of the Evidence Act is rebuttable, and the burden lies on the husband to disprove paternity. Refusal to undergo DNA test and failure to prove non-access to the wife can influence the court's decision.

JUDGMENT

1. Rule. Rule made returnable forthwith. With the consent of the parties, heard finally at the admission stage.

2. A challenge in this petition is to the order passed by the learned Additional Sessions Judge, Beed dtd. 30/11/2016, passed in Criminal Revision No.138 of 2015, thereby dismissing the revision application. The revision was filed challenging the judgment and order passed by the learned Judicial Magistrate, First Class, Ashti dtd. 29/9/2015 in Criminal Misc. Application No.38 of 2013. By the said order, the learned JMFC had granted maintenance under Sec. 125 of the Criminal Procedure Code to respondent Nos.1 and 2 i.e. husband and daughter at the rate of Rs.2000.00 and Rs.1000.00 per month respectively.

3. Respondent No.1-wife filed an application under Sec. 125 of the Cr.P.C. seeking maintenance for herself and daughter, who was aged 5 1/2 months at the time of filing of the application. It is case of the wife that the husband did not maintain her well and driven her out of the house on 20/4/2012. There was demand of Rs.25,000.00 to buy a bullock cart. The wife was required to file complaint under Sec. 498-A of the Indian Penal Code. She delivered a daughter on 15/8/2012. However, inspite of that the petitioner-husband is not taking care to maintain the wife and the daughter. The petitioner lives in a joint family having 16 acres land at village Umapur and 24 acres land at Kumbe Jalgaon, in which the husband has 1/5th share. Out of the said property, the petitioner-husband is getting income of Rs.2.00 lakhs per year. In addition to that the father of the husband is a priest in a temple at Borgaon. The temple is having 10 acres of land, that is looked after by the father of the husband and from that land also family gets considerable income.

4. The husband appeared and filed say. The main allegation is that the girl child of the respondent wife is not from him and he is not a biological father of the child. Inspite of this, he had made attempts to bring wife to home, but it is the wife, who is not ready to come for co-habitation. She had relations with some other person. Thus, case of the petitioner-husband is that he is not liable to pay maintenance.

5. After recording the evidence and after hearing the parties, the learned JMFC was pleased to hold that the husband has failed to prove that the wife is living an adulterous life. It is held that the husband has refused and neglected to maintain the wife and child without sufficient reason. It is held that the applicant is not capable to maintain herself. Lastly, it is held that she is entitled to receive maintenance and awarded maintenance at the rate of Rs.2000.00 and Rs.1000.00 per month each to wife and the child. The learned Trial Court has held that there is no sufficient evidence to show that the husband is not a biological father of the child. The Trial Court placed reliance on Sec. 112 of the Evidence Act to hold that the child is born during the subsistence of the marriage and therefore the child is presumed to be born from the husband. The husband has failed to prove that after dissolution of the marriage, the child is born after 280 days. In this case, there is ultimately no dissolution of marriage. The petitioner-husband relied upon judgment of the Hon'ble Apex Court in the case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Another 2014 AIR (SC) 932.

6. The order passed by the Trial Court is challenged by the husband by filing revision in the Court of learned Sessions Judge, Beed, bearing Criminal Revision No.138 of 2015. In the said revision, the husband had specifically taken a ground No.5 in respect of finding by the learned Trial Court that the petitioner is presumed to be a biological father of the child. It is specific ground that the respondent-wife had refused to go for DNA test. The learned Sessions Judge after considering the material on record dismissed the revision. The learned Sessions Judge also considered the judgment in the case