040-NLR-NLR-V-47-RANASINGHE-Appellant-and-SIRIMANNA-Respondent.pdf
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HOWARD C.J.—Banautinghe v. Sirimanna.
1946Present: Howard C.J.
RANASINGHE, Appellant, and SIRIMANNA, Respondent.
76—M. G. Chilaw, 23,343.
Evidence Ordinance, s. 112—Meaning of “ access to the mother ”—Legitimacyof child bom during subsistence of marriage.
The word “ access ” in section 112 of the Evidence Ordinance meansno more than opportunity of intercourse.
Per Howabd C.J.—“ In view of this decision [Karapaya Servai v.Mayandi A. I. R. 1934 P. C. 49] the judgment of the Full Bench in JaneNona v. Leo (25 N.. L. R. 241) that the word ‘ access ’ in section 112 ofthe Evidence Ordinance is used in the sense of ‘ actual intercourse ’ andnot ‘ possibility of access ’ or ‘ opportunity for intercourse ’ can nolonger be regarded as binding authority ”.
^ PPEAL from a judgment of the Magistrate’s Court of Chilaw.
H. W. Jayewardene, for the defendant, appellant.
No appearance for the applicant, respondent.
Cur. adv. vult.
March 18, 1946. Howard C.J.—
The appellant in this case appeals from a judgment of the Magistrate’sCourt of Chilaw holding that he is the father of the children (1) Ethelreda,{2) Hector, and (3) Alreda and directing him to pay Rs. 15 per monthfor the three children at the rate of Rs. 5 for each child. Mr. Jayewardeneon behalf of the appellant contends that the order of the Magistratecannot be allowed to stand, as the applicant, the mother of the children,a married woman, has not proved that her husband.had no access to herat any time when such children could have been begotten. It iscontended that the applicant has "failed to rebut the legal presumptioncreated by section 112 of the Evidence Ordinance. This section is wordedas follows :—
“ The fact that any person was born during the continuance of avalid marriage between his mother and any man, or within two hundredand eighty days after its dissolution, the mother remaining unmarried,shall be conclusive proof that such person is the legitimate son of thatman, unless it can be shown that that man had no access to the motherat any time when such person could have been begotten or that he wasimpotent.”
In the case of Karapaya Servai v. Mayandi 1 it was held by theirLordships of the Privy Council that the word “ access ” means no morethan opportunity of intercourse. It had been suggested in that caseby Counsel for the appellant that the word implied actual cohabitation.In view of this decision the judgment of the Full Bench in Jane Nona v.Leo * that the word “ access ” in section 112 of the Evidence Ordinance
* A. I. R. 1934 P. C. 49.
* 25 N. L. R. 241.
HOWARD C.J.—Ranasingha v. Sirimanna.
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iB used in the sense of “ actual intercourse ” and not “ possibility ofaccess ” or “ opportunity for intercourse ” can no longer be regarded as abinding authority. In this connection I have not been unmindful of thejudgment of W ij eye wardono J. in Alles v. AUes ■*. At p. 225 I observethat the learned Judge in referring to section 112 of the EvidenceOrdinance stated that the section had been construed in Jane Nona v. Leowhich was a decision of the full Court and binding on him. He wenton to hold that the first defendant had had‘actual intercourse withthe plaintiff and was the father of the child. The effect of the decisionin Kam/paya Servai v. Mayandi on the authority of Jane Nona v. Leodoes not seem to have been considered by the Judges in Alles v. Alles.The omission to do so is no doubt accounted for by the fact that it wasunnecessary for their decision in that case.
From a perusal of the judgment of the Magistrate it would not appearthat the latter has addressed his mind to the question as to what evidenceis required to rebut the presumption created by section 112 of theEvidence Ordinance. The applicant in her evidence states that she wasmarried to Joseph Goonetilleke of Irattakulam and that after she becameintimate with the appellant she had nothing to do with Goonetilleke.Ethelreda was bom to the defendant at Madampe, Hector at Kegallaand Alfreda at Dalugama at times when he lived in those respectiveplaces. In. cross-examination she says that she cannot remember whenshe left her husband but in 1935 she was living in a house at Madamperented out by the defendant near the Dispensary. In regard to thebirth of Ethelreda the birth certificate (D 4) was produced showing thatthis child was bom on February 13, 1936, at Madampe, and that herhusband gave the information and is recorded therein as the father.The applicant also states that she lived with the defendant for 2 yearsat Udagama in the Kegalla District and that her husband did not visither at that time. The birth certificate of Hector was produced (D 5)and indicates that this child was bom on May 21, 1937, at Udagama.The applicant’s husband is shown as the father. The applicant deniesthat she was pregnant before she went to Udagama. The birth certificateof Alfreda (D 6) indicates that this child was bom on March 9, 1938, atBadalgama, Meeg&hawatta, that the applicant’s husband was registeredas the father and his profession is described as that of a teacher and thatthe applicant was the informant. With regard to D 6 the applicantstates that the appellant took her to the Registrar of Waragoda,Kelaniya, and that something was written and she was asked to sign it.She also says she was pregnant before she went to Waragoda. Shecannot remember the year. The applicant called two witnesses tosupport her story. Rupesinghe, a landed proprietor of Madampe, and arelation of the defendant, stated that while the defendant was atMadampe the applicant left her husband and lived with him. Thereafterthey left the village together, but he cannot say where they went.During the earlier part the defendant visited the applicant at herhusband’s house. He denies that her husband visited the applicant.Hector Wijesinghe, also a land owner living at Madampe, also statesthat the defendant and applicant lived together at Madampe and then
1 46 N. L. B. 217.
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Hamid v. Badurdeen.
left the village together. This witness also does not know where theywent. The defendant admits that he was intimate with the applicantbut maintains that it was with the permission of her husband. He alsostates that the applicant and her husband are living together in the samehouse. The defendant called two witnesses. The Village Headman ofIhalagama, Madampe, stated that in 1035 and 1936 the applicant livedwith her husband, but he cannot say whether they lived at Madampeafter 1937. The Village Headman of Dippitigoda, Kelaniya, states thatboth the defendant and her husband were visiting the applicant atBadalgoda, Kelaniya, between the middle of 1937 and 1938.
In my opinion the applicant has not rebutted the presumption createdby section 112 of the Evidence Ordinance. She haB not proved that thehusband did not have an opportunity of intercourse. Even if herevidence and that of her witnesses is accepted, it merely shows that after1936 she was living with the defendant in another village and not withher husband at Madampe. This testimony does not establish that therewas no possibility of intercourse.
For the reasons I have given the order of the Magistrate is set aside.I make no order as to costs.
Appeal allowed.