043-NLR-NLR-V-23-ROSALINAHAMY-v,-SUWARIS.pdf
( 168 )
1981.
Present: Shaw J.ROSALINAHAMY v. SUWARIS.
375~P. 0. Panadure, 69,795.
Evidence Ordinance, s. 112—Child horn within three months oj marriage—
Is marriage conclusive proof that husband was the father ?—
Physical impossibility of access.
The appellant married A, who was not known to her till marriage.A child was bom within three months of marriage. The appellantalleging that respondent S was the father of the ohild claimedmaintenance.
Held, that section 112 of the Evidence Ordinance did not standin the way of appellant’s claim, and that the fact of marriage wasnot conclusive proof-that A was the father.
Obiter.—Section 112, on the face of it, appears to apply to actionsin which legitimacy comes into question, and it does not, on theface of it, appear to have any application to proceedings under theMaintenance Ordinance. 1
1 U904) S A A.-ff, 70.* U004) 1 Bah 44. N
( 169 )
rjlHE facts appear from the judgment.
>
Wijemanne, for the appellant.
J. 8. Jayawardene, for the respondent.
1921.
Roadtina-homy v.SuwarU
May 3,1921. Shaw J.—
This is a somewhat peculiar case under the Maintenance Ordinance.The appellant took proceedings against the respondent to obtainan order for the maintenance of a child, which she said was thechild of the respondent. The facts, as found by the Magistrate, arebriefly as follows, namely, that the respondent in fact seduced theapplicant, and that she became pregnant from him of the child inquestion, that the respondent on discovering this arranged a marriagebetween the applicant and a man named Abraham. This man was astranger to the girl until the marriage contraot was made shortlybefore the marriage took place; that by the promise of the dowry ofRs. 200, and by concealing from Abraham the fact that the youngwoman was pregnant, he induced him to consent to the marriage.The marriage took place, and the next day Abraham deserted his wife,having discovered that she was pibgnant, and not having receivedthe dowry which he had been promised. The facts that I havementioned appear to be satisfactorily proved, and the evidence ofthe applicant supported in material particulars by other evidence.,Although the Magistrate has found this state of facts to be true,he has dismissed the applicant’s case, in consequence of what hethinks is the law under section 112 of the Evidence Ordinance.That section is as follows: “ The fact that any person was hornduring the continuance of a valid marriage between his mother andany man, or within 280 days after its dissolution, the motherremaining unmarried, shall be conclusive proof that such person isthe legitimate son of that man, unless it can be shown that that manhad no access to the mother at any time when such person couldhave been begotten, or that he was impotent.” That section, on theface of it, appears to apply to actions in which legitimacy oomesinto question, and it does not, on the face of it, appear, to haveany application to proceedings under the Maintenance Ordinance.But it has been so applied, and I need not discuss the matter, butfor the purposes of this case assume that it applies to the presentcase. It will be noticed that that section provides that thisirrebuttable presumption arises, unless it can be shown that therespondent had no access to the mother at any time when the childmight have been begotten. The language of that section has been,if I may say so with due deference, considerably extended by theFull Court in the case of Sopi Nona v. Marsiyan} The Court there;following more some English decisions than the wording of our 1
1 (1993) € N. L, R. 379.
6*
1021.
Shaw J.
Rosalina-hamy v.Suwaris
( 170 )
Statute, appear to have held that it is neoessary to show impossibilityof access of the husband to the wife at the time the child may havebeen begotten. The wording of the judgments are somewhatdifferent, but Layard G.J. goes so. far as to express an opinion thatit must be shown to be u physically ” impossible. That case is, ofcourse, binding on myself and other Courts of this Colony, until it isin any way changed by legislation or by the decision of the PrivyCouncil. In several later cases it has been pointed out by Judgesthat that case does not really go so far as the wording of it wouldseem to indicate. The case was considered in a la tor Full Courtcase of Robot v. De Silva,1 and in that case Hutchinson C.J.expressed his opinion of what the Court meant in the case of SopiNona v. Marsiyan * He said: “ I think that all that the Courtmeant in that case was that it must be shown to have been impossibleconsistently with the facts proved. It must be proved affirma-tively, and not merely inferred as a probability, that the man hadno access.” And this same view is taken by Pereira J. in the caseof Kalo Nona v. Silva? I may also point out that Chief JusticeWood Benton, in the case of Ango v. Podisingho? whilst admittingthe authority of the case of Sopi Nona v. Marsiyan,2 points out thatin the Privy Council case in Robot v. De Silva 1 the respondent’scounsel admitted that he could not contend that under section 112 ofthe Ceylon Evidence Ordinance that it is necessary to prove absoluteimpossibility of access. In the present case I think that withinthe. words of Hutchinson C. J. it has been shown to have beenimpossible consistently with the facts proved that the husband,Abraham, was the father of the child. If, as the evidence shows, hedid not even know the girl at the time when this child was begotten,it is impossible that he can be the father of the child which wasborn three months after the marriage. 1 think that the obligationimposed by section 112 of the Evidence Ordinance has been met,and that it has been sufficiently proved that Abraham had noaccess to the applicant at the time the child was begotten. Thatpresumption of paternity having been disposed of, it is open tothe Magistrate to find, as he has in fact found upon the evidencein the case, that the respondent is the father of the child, andtherefore is liable for its maintenance. In the event of this appealfrom his decision being successful, he has found the amount whichhe thinks right should be ordered to be paid by the respondent,and that is the sum of Rs. 12 per mensem. I accordingly allowthe appeal, and direct an order to be entered that the respondentpay to the applicant Rs. 12 per mensem from February 1 in respectof the maintenance of the child. The appellant is entitled to thecosts of the appeal.
Appeal allowed.
1 (1909) A. C. 276.3 (1912) IS JV. L. R. SOS.
s 11903) 6 N. £. R. 379.* (1921) IS N L. R. 512.