( 611 )
Present: Wood Bfenton J.
ANGO v. PODISINGHO.449—P. G. illatdle, 36,333*
Queers, whether the words " no access to the -mother" in section112 of the Evidence Ordinance mean absolute impossibility ofaccess.
fjp HE facts are set out in the judgment.
A. St. V. Jayewardene, for the respondent, appellant, argued onthe f&cts.
Wood Benton J. referred counsel to the argument before thePrivy Council in Babdt v. De Silva.1
No appearance for applicant, respondent.
July 28, 1911. Wood Benton j.—
The respondent-appellant has been ordered to pay maintenanceto the applicant-respondent for a child of which she alleges that heis the father. For the sake of clearness, I will speak of the parties-as the appellant and the respondent simply. The respondent is amarried woman. There is some evidence showing that she has beenliving apart from her husband for several years. But there is-nothing to prove non-access in any sense in which that term is usedin law either in England or in Ceylon. One of the witnesses saysthat he has heard that the respondent's husband is in AnuradhapuraDistrict. Of course, that is not evidence. But there is no kind ofproof that he was not in a position to have access to his wife at thetime when this child must have been conceived. The point withwhich I am now dealing does not seem to have been brought underthe notice of the learned Police Magistrate. He held on the evidence-before him; and if the respondent had not been a married woman,there is evidence which would justify him in holding that the-appellant was the father of the child, for whose maintenance applica-tion has been made in these proceedings. But if, as is the case, the-respondent is a married woman, then section 112 of the' EvidenceOrdinance applies, and the child in question must be taken to be her'husband’s legitimate child, unless the presumption of the paternityarising from his relation as husband to the respondent is disposed ofby showing that he had no access to the mother at any time when, the-child could have been begotten, or was impotent. As 1 have already'
i (1903) 6 N. L. R. 379.
( 512 )
. mi* said, theca is no such proof in the present case, and. the presumption. Wood-, enacted by section 112 must, therefore, hold good its the appellant’sItraios J. favour.
Although it iB not necessary to decide the point, it is right, I think,that I should call attention to what happened in the Privy Councilin the case of Rabdt v. Silva,1 in regard to the construction placed bythe Supreme Court of the Colony on section 112 of the EvidenceOrdinance in the oases of Perera v. Pody Sinho 2 and Sopi Nona v.Maraiyanf and, indeed, in Rabdt v. Silva1 itself at the argument inappeal in Ceylon. . In the cases, last mentioned the Supreme Courtheld in effect that evidence of moral impossibility of access bn thepart of spouses is not admissible under section 112. In Rabdt v.Silva,1 in the Privy Council, the appellant’s counsel was about tocontend that the construction which the Supreme Court of Ceylonhad placed on section 112 was wrong, when he was interrupted bythe respondent’s counsel, Mr. Cohen, who said “ I shall not contendthat it is necessary to prove absolute impossibility of access. ” Thepoint appears to have been dropped, and no reference to it is made,so far as I can see, in the judgment of the Judicial Committee. If-the point should arise for decision at some future time, it may benecessary to consider how far the earlier decisions of this Court, to-which I have referred, ought to be followed in regard'to the question'Of impossibility of access in view of wha? happened in the PrivyCouncil in the case of Rabdt v. Silva.1 There is no need, however,for me to deal with that point now, since there is no evidence in the-record which could rebut the statutory presumption arising under-section .112 of the Evidence Ordinance. I set aside the order-appealed against, and dismiss the respondent’s application with thecosts of the proceedings in the Police Court. There will be no costs<of the present appeal.
2 (1901) 6 N. L. B. 848.2 (1903) 6 N. L. B. 379."
* (1909) A. C. 376.
ANGO v. PODISINGHO