122-NLR-NLR-V-57-ANDIRIS-FONSEKA-Appellant-and-ALICE-PERERA-Respondent.pdf
3956Present :Sansoni, J.
AXDIRLS EOXSEKA, Appellant, and ALICE PEE ERA, RespondentS. C. 40—M. C. Matugama, 22.9S5
Evidence Ordinance—Section 112—Birth during marriage—Presumption of legitimacy—“Access".'
Tho word “ access ” in section 112 of the Kvidcnco Ordinance means“ opportunity (Jf intercourse ” nncl not “ actual intercourse The judgmentof the Full Bench in Jane Kona v. Don Deo (1923) 25 X. J,. It- 241 is no longer law.
-X^lPPEAL from a judgment of the Magistrate’s Court, Matugama.
Ii. A. Kannangara, for the defendant appellant.
O. D. S. Siriwardene, for the applicant respondent.
Cur. adv. vult.
March 23, 1956. Sansoni, J.—
This appeal arises out of an application for maintenance made by theapplicant-respondent against the defendant-appellant, who is not herhusband, claiming maintenance from him on the ground that he was thefather of her child Ranjit. The applicant-respondent was married in1949 ; that marriage has not been dissolved and the child in cpiestion•was bom to her on 10th August, 1953. The defendant denied paternity,but after inquiry the learned Magistrate held that the defendant was thefather of the child and ordered him to pay maintenance.
The learned Magistrate carefully considered the question whetherthere was intimacy between the applicant and the defendant at the timerelevant to the application, and there can be no doubt, that on the evidencebefore him the learned Magistrate came to the only possible conclusionon that matter.. But since the child was bom during the continuance
of a valid marriage between the applicant and her husband, the moreimportant question which requires consideration is whether the applicanthas discharged the onus of rebutting the conclusive presumption createdby S. 112 of the Evidence Ordinance. Unless the applicant has succeededin doing so, the fact that she was intimate with the defendant has nobearing on the question of paternity.
In order, I suppose, to rebut that presumption evidence was given“by the applicant and her witness the Village Headman to the effect that,the applicant and her husband had separated in 1950 or 1951. The-time of the alleged separation is itself uncertain.' The applicant statedan her evidence in chief that she and her husband separated in 1950 ; undercross-examination she stated at first that they lived together till aboutthe middle of 1951, but she later said that they separated in the latterpart of 1951. According to the Village Headman the applicant and her'husband came to him on 20th January, 1950 and informed him that theywere separating from each other and signed his diary. The diary entryitself is open to suspicion because the date first appears as 18th January1950 ; this date has then been scored off and the date 20th January 1950substituted. No evidence was led as to the place of residence of herhusband thereafter, and it is impossible to conclude that because thehusband and wife told the Headman the}1- were separating, they did notmeet again. The applicant’s evidence itself disproves such a theory.
Every assumption should be made in favour of the legitimacy of this-child, and its illegitimacy can only be conceded if the applicant provedbeyond reasonable doubt that her husband had no “ opportunity ofintercourse ” with her at any time when the child could have been con-ceived. This she has completely failed to do. It cannot be held, there-fore, that the child Banjifc, in respect of whom this application has beenmade, was the child of the defendant.
I use the phrase “opportunity of intercourse ” advisedly for that, Ithink, is the authoritative definition of the word “access” in S. 112.
-On tliis question there are conflicting decisions. Basnayake, J. inPesona v. Babonchi Baa-s and Swan, J. in Kiri Banda v. Hetnas in ghe ,held that the word meant “actual intercourse ”, as decided by the FullBench in Jane Kona v. Don Leo. Howard, C.J. in lianasinghe v. Siri-mane4, and Dias, J. in Selliah v. Sinnaninia5 followed the decision of thePrivj- Council in Karapaya Servai v. JMayandi6, in which it was held that"the word meant “ opportunity of intercourse
seemed to turn upon the nature of the access. The judgment contains aclose examination of the evidence, and the conclusion arrived at was-that no Court could hold on that evidence that non-access at therelevant time had been proved. '
That being iny view I consider myself bound to follow that decision.Any doubt which may have existed previously has, I think, been removedby the judgments of the Privy Council in Nadarajan Chettiar v. Tennekoon1and Cooray v. The Queen s. In Cooray v. The Queen the Court of CriminalAppeal in Ceylon had not followed a line of English decisions which hadconstrued an English Act upon which S. 392 of the Penal Code wasmodelled. Lord Porter therefore had occasion to consider whether therule in Trimble v. Hill3 still held good. In Trimble v. Hill the PrivyCouncil said :
” Their Lordships think the Court- in the Colony might well havetaken this decision as an authoritative construction of the statute.It- is the judgment of the Court of Appeal, by which all the Courts inEngland are bound, until a contrary determination has been arrivedat by the House of Lords. Their Lordships think “that in Colonicswhere a like enactment has been passed by the Legislature, the ColonialCourts should also govern themselves by it ”.
These remarks were made because the New South Wales Court had differedfrom the Court of Appeal in its construction of a section which was similarto a Section which appeared in an Imperial Act. Lord Porter then said :It is true that in that case the decision referred to was one given bythe Court of Appeal and that the Courts which it was said shouldfollow it were Courts of a Colony, but in their Lordships7 view EnglishCourts should themselves conform to the same rule where there hasbeen a long established decision as to a particular section of an Ac t ofParliament and even more so where there has been a series of decisionsover a period of years. They accordingly arc of opinion that in thecase of the Courts of a member of the British Commonwealth of Nationsa similar course should be followed
In Xa-darajan Chelliar v. Tennekoon, Sir John Beaumont said that therule still applied to the Courts in Ceylon except in cases where local condi-tions make it inappropriate.
The comment of dc Villicrs (then J. P.) in Henkes v. Knights Deep J,when referring to this rule will bear repetition. He said :
“ Even apart from this ruling, the Court of this Province natmallyinclined, on account of their inherent weight, to follow so eminent aCollege as a Court of Appeal in England ”.
Even, therefore, if there was no duty cast on me to follow the PrivyCouncil in Ka-rapaya Servai v. Mayandi, I should have no hesitation infollowing that decision, for, to quote the words of Goddard, L.J. inKigali t Moran5 when referring to another Privy Council^ judgment*
> (1950) 51 X. L. R. 49J.3 (1S79) 5 A. C. 342.
! (19-53) 54 N. L. R. 409,* (1917) T. P. D. at 6S9.
5 (1941) 1 .-t. E. II. nt 101.
*' though not technically binding on tin's Court, it is impossible to treat apronouncement of such high authority as otherwise than conclusive ofthe point ",
In ni3r view the judgment of the Full Bench in Jane Kona v. Don Leois no longer law.
AppcaJ allmcetl.
For these reasons I allow this appeal and dismiss Ihc application formaintenance.