PAVISTINA v. ARON.P. C., Colombo, 6,628.
Maintenance—Child born in lawful wedlock—Presumption as to paternity—How such presumption may be rebutted.
A child born in lawful wedlock is presumed to be that of thehusband. Proof of impossibility of access to each other of husbandand wife is not absolutely necessary to rebut the presumption.It is enough to show that no sexual intercourse took place betweenthe husband and wife at any time when in the order of naturethe husband might have been the father of the child.
'J'HE facts of the case appear in the judgment.—
Ba-wa, for appellant.
17th September, 1897. Withers, J.—
This is an application by a wife against her husband for anorder on the latter to maintain her and her child, on the groundthat the husband neglects to maintain the applicant and her child,he having sufficient means to do so.
The application was resisted, the defence being that the husbandand wife were living apart by mutual consent, and that the childwas not his child.
The case for the defendant is briefly this. Shortly after hermarriage the wife went to live with her parents, and the husbandcomplained to the headman of her misconduct and of her leavinghis house with property which he thought not hers to take away.The headman endeavoured to induce the wife to return to her‘husband, but she positively refused to do so, and from that day tothis they have not met again. The final separation was about the18tb September, 1895.
In April, 1897, the applicant gave birth to a child. T wo questionsarose for decision in the case: one was, Was the wife living separatelyfrom her husband by mutual consent ? The other was, Wasthe child born in April, 1897, the child of the defendant ?
The Magistrate found for the defendant on the first issue, and ifI may say so, he had very good grounds for doing so. On theother issue he found against the defendant in these terms : “ As“ to the child, the defendant has not proved impossibility of“ access, and therefore the child must be taken to be his.”
This is not quite a correct statement of the law as I under-stand it.
( W )
1897. The 112th section of the Ceylon Evidence Ordinance, 1895,September 17. enaots as follows : “ The fact that any person was born during theWithers, J- “ continuance of a valid marriage between his mother and any“ man, or within two hundred and eighty days after its dissolution,
“ the mother remaining unmarried, shall be conclusive proof that“ such person is the legitimate son of that man, unless it can be“ shown that that man had no access to the mother at any time“ when suoh person could have been begotten, or that he was“ impotent.”
The presumption being against the defendant in this case, itwas of course for him to rebut it, but it is going too far to saythat he must prove impossibility of access. It does not necessarilyfollow that, because the husband and wife continued to live in thesame village and had on account of that proximity opportunitiesof access, they had sexual intercourse. The simplest way toput the question is this: Is the Magistrate satisfied from thecircumstances proved for the defence that no sexual intercoursedid take place between the applicant and the appellant at any timewhen in the order of nature the husband might have been thefather of this child. The law remains very much what it waswhen the opinions of the Lords were delivered in the celebratedBanbury Peerage case (.7 Sim. and St. 153). A material opinionthere was this: In every case where a child is bom in lawfulwedlock, the husband not being separated from his wife by asentence of divorce, sexual intercourse is presumed to have takenplace between the husband and wife until that presumption isencountered by such evidence as proves to the satisfaction of thosewho are to decide the question that such sexual intercourse didnot take place at any time, when by such intercourse the husband
could,.according to the laws of nature, be the father of such child. ,
Of the Banbury Peerage case the Lord Chancellor, in his opinionon a similar question in Morris, v. Davis, reported 5 Clark andFin. 163 and 252, observes : “ It must therefore have been assumed" that Lord and Lady Banbury were living together as much as“ if the direct evidence of their being in the same house is credited.”
Yet the facts rebutting the legitimacy were so strong that thenoble Lords considered themselves bound to report to the Crownthat the child in question was not the child of Lord Banbury.
I therefore open the judgment, that the Magistrate may reconsiderbis decision.
If he is satisfied that there was no sexual intercourse betweenthe applicant and appellant witbin the time above indicated, he
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will refuse an allowance for the child ;. if he is not satisfied, he willrepeat his order, which I have opened up for his further con-sideration. If he is minded to further examine any of the witnesses,I see no objection to his doing so.
If he has all the available material before him he will decidetiie question at once. Let the record he remitted accordingly.
September 17.Wjxbbbb, .T.
PAVISTINA V. ARON