Dhavle, J.This is an application in revision against an order of maintenance passed u/s 488, Criminal P.C.

2. On 18th May last, Mt. Kesari, the mother of two boys aged 6 and 3 from her husband Radha Gareri, filed a petition before the Sub-Divisional Magistrate of Buxar, saying that during her husbands absence in Burma she had contracted illicit intimacy with his elder brother, Prasad Gareri, and thus given birth to a girl after her husbands return, and that she had been turned out of the house along with the children (the girl being then about a month old) and asking that she be given Rs. 15 a month as maintenance for the children from Radha and Prasad.

3. Upon this the then Sub-Divisional Magistrate called upon the two brothers to show cause why they should not pay Rs. 5 each as maintenance to her. Radha showed cause by means of a petition saying that he had been away in Burma for three years, that he had not turned his wife out, but that he was unable to live with her for fear of being ex-communicated and was too poor to pay maintenance; and he prayed that his own two children may be made over to him. Prasad said that he had been in Burma with his brother Radha, that in their absence Kesari had conceived through an unknown "person" at her naihar (fathers house), that he had only come home on receipt of a telegram from Radha regarding the birth of the third child, that they asked the woman to give them the two boys of Radha and go back to her parents, and that she had left with the children and then filed her petition at the instance of their enemies. Curiously enough, Kesari admitted in her cross-examination in July that "Sheodhari and Girwardhari have made me file this petition against Prasad owing to their own grudge," and said that her husband was "an idiot."

4. The case was disposed of in September by a succeeding Sub-Divisional Magistrate who recorded the evidence of two witnesses for Mt. Kesari and five witnesses for Prasad Gareri, but apparently considered it unnecessary to discuss it and delivered a short judgment, making what he called "the order against the O.P." The application in revision is filed by Prasad Gareri, on whose behalf it has been contended that the order of the Magistrate is without jurisdiction and is further, on his own showing, unsound in law. Radha Gareri has not applied in revision, but the whole record is before me and the order of the Magistrate so far it affects him also can be dealt with u/s 439, Criminal P.C., especially as Prasad has urged that there is no finding of neglect or refusal to warrant any order of maintenance at all. All that the learned Magistrate has said about Radha is:

Since the mother has been turned out, I think that the claim of maintenance of the two legitimate children must be considered. It has not been shown tome that the first party, i.e., Radha, would maintain them. I would, therefore, include these children also along with the third born of Prasad as entitled to be maintained by the first party.

5. Section 488, however, only gives jurisdiction to make an order of maintenance for the children against the father if it is shown that having sufficient means he has neglected or refused to maintain them, the children in this case being clearly too young to maintain themselves. Kesari did say that she had been turned out of the house by Radha, but the learned Magistrate does not seem to have considered whether that was really so as against Prasads counter version that she had left the house on account of caste troubles. Radha had stated in his petition that he was willing to maintain his children, and had asked the Magistrate to have those children made over to him. It is not clear how far this attracted the notice of the Magistrate, who apparently took Radhas willingness to maintain the children to be a matter not of Radhas own intention, but of evidence aliunde. It was but two days before her petition of May that Kesari had, according to her story, been turned out. It could not be assumed in the circumstances that Radha had neglected or refused to maintain his two little boys, nor does the judgment of the learned Magistrate go far to show that ho was aware that no order could be passed against Radha u/s 488, unless neglect or refusal to maintain his children was brought home to him or to show that he has in fact found such neglect or refusal on the evidence.

6. In case of neglect or refusal Radha was, of course, bound to maintain his two children, but the order passed against him further merely assumes that he had means enough to pay Rupees 5 a month. As regards Prasad Gareri, the learned Magistrate began by observing that

since the absence in Burma has provided both the cause and excuse in this case, the onus of the excuse fell on the opposite party.

7. What exactly he meant by "cause" and what by "excuse" is far from clear; but it seems clear that according to him it was for Prasad to prove that he was not the father of the illegitimate child. Indeed, he proceeds to say that it has nowhere been proved before him "that Prasad was in Burma for a period before the birth of this illegitimate child long enough to place the absence of his paternity of that child beyond any doubt". But surely it was for Mt. Kesari to show that the last child was born of Prasad before the latter could be called upon to disprove it, and it is settled law that it is prima facie improper to accept without corroboration the mere statement on oath of the mother who asserts that a certain man to whom she is not married is the father of her child.

8. The learned advocate for Mt. Kesari has contended that as in Bathulu Bhagirathi v. Lakshmi Devi AIR 1940 Pat. 242 , the uncorroborated evidence of the wife could be accepted; but in that case the evidence so accepted only related to the question of how the wife had been treated by her husband. In the present case evidence was given on behalf of Prasad that Mt. Kesari had herself told Kalbal Ahir, the chaukidar, that her daughter was born of Radha. Referfing to this, the learned Magistrate says that the only point for him to consider is

the evidence of Kalbal Ahir as tested in the light of the statement of the petitioner. Mt. Kesari said that her child was reported to the chaukidar as being the child by Prasad. I do not believe the oral statement of Kalbal that the petitioner had told him that her daughter was born of Radha.

He goes on to say that

the paternity of Radha (sic) of the third child of Mt. Kesari has not been disproved. Theone convincing proof has not been produced, while the petitioner has proved that sufficient opportunity obtained for Prasad to commit adultery with her. Her explanation of his conduct after his knowledge that she had conceived by him is adequate to explain his movements.

9. There is no reference in the judgment to any evidence by which the woman could be said to have proved that Prasad had any opportunity of illicit connexion with her before going to Burma, to return after the birth of the baby. Prasads case, moreover, that he was away in Burma all the time was supported by some witnesses, whose evidence the Magistrate has not considered at all. The learned Magistrate apparently began by accepting the womans story without any corroboration and disbelieved the chaukidar for no other reason than that her story was to be taken as the "test" of truth, and without noticing her admission that Kalbal has no enmity with her. It is again without reference to any evidence adduced by Mt. Kesari in support of her story that the Magistrate refers to Prasads failure to produce "the one convincing proof." It was clearly necessary in a case of this kind to consider the evidence on behalf of the woman; and it seems extraordinary that the learned Magistrate should not even have referred to her admission that Sheodhari and Girwardhari had made her file the petition against Prasad owing to their own grudge.

10. It has finally been contended on behalf of Mt. Kesari that the application in revision should not be allowed because it was made direct to this Court. This, however, does not appear to be a fatal objection. A direct application seems (from the report in Bathulu Bhagirathi v. Lakshmi Devi AIR 1940 Pat. 242 ) to have been entertained by my Lord the Chief Justice in Bathulu Bhagirathis case AIR 1940 Pat. 242 to which I have already referred.

11. In Abdul Matlab v. Nanda Lal AIR 1923 Cal. 674 , the learned Judges recognized that ordinarily applicants in revision ought first to move those lower Courts which have the power to make a reference to the High Court, but the application having been heard and the rule having been granted, they not only declined to discharge the rule on the ground that the application had been made direct but held that they were bound to dispose of it on the merits.

12. The point was also considered by a Full Bench of the Allahabad High Court in Shailabala Devi Vs. Emperor , where it was held that once an application in revision has been admitted and the record called for, an objection on the ground of departure from the practice of not interfering in revision unless lower Courts of revision have first been moved should not therefore be entertained.

13. The result is that the application of Prasad Gareri must be allowed, and the order directing him to pay Rs. 5 a month for the maintenance of the recently born child of Mt. Kesari set aside. The order requiring Radha Gareri to pay a similar amount for the maintenance of his two children must also be set aside. The Magistrate will now rehear the parties and dispose of the case in accordance with the law.