COURT OF APPEAL.
A. DE Z. GUNAWARDANA, J„
M. C. KEKIRAWA No. 21/86(F.C.),
JUNE 5 AND 6, 1990.
Evidence — Child bom during the continuance of a valid marriage – Presumption oflegitimacy under section 112 of the Evidence Ordinance -What is the standard of proofrequired to rebut the said presumption ? – Meaning of “access" – Wife living in adultery hasno right to claim maintenance from her husband.
The learned Magistrate of Kekirawa dismissed the application made by the Applicant-Appellant, for maintenance for herself and her child. At the inquiry marriage was admittedbut paternity of the said child was denied by the Respondent-Respondent. Applicant-Appellant's case was that she lived with the Respondent-Respondent from January 8,1981, the day of the marriage, upto the end of March 1982, when she was brought backto her parents' house as she was pregnant. She gave birth to the said child on May 7,1982.The Respondent – Respondent's position was that on the night of the day of marriage hefound that the Applicant – Appellant was not a virgin. Thereafter he made a complaint tothe Grama Sevaka of his village. The Applicant-Appellant's statement was also recordedby him, where she explained how she lost her virginity. Soon afterwards Applicant-Appellant was brought back to her village, and handed over to her parents. After makinga statement to the Grama Sevaka of that village, the Respondent-Respondent went backhis village. Since then the Respondent – Respondent had nothing to do with theApplicant-Appellant.
that a high degree of proof is.required to rebut the presumption created under section112 of the Evidence Ordinance.
PerGunawardana, J., Thus it appears that the presumption of legitimacy is rebuttable onlyby adducing cogent, dear and convincing evidence. This would in effect mean, that theman must prove, on evidence, which would not admit of any reasonable doubt, that he hadno access."
That the word ‘ access" means not only actual intercourse but also persona) accessunder circumstances which raise the presumption of actual intercourse.
That the falsity of the allegation made by the Applicant-Appellant would tend tocorroborate the denial of paternity by the Respondent-Respondent
That section 4 of the Maintenance Ordinance denies a wife living in adultery, the rightto claim maintenance from her husband.
Cases referred to#:
Pesona v. Babonchi Bass 49 NLR 442, 444.
Hargrave v. Hargrave 2 Beav. 552, 50 ER 457, 458.
Head v. Head 1823 Turn & R. 138, 141:37 ER 1049, 1050.
Churchman v. Churchman 1945 2 All ER 190, 195.
Jane Nona v. Leo 25 NLR 241 (PC).
Ranasinghe v. Sirimanne 47 NLR 112 (PC).
Karapaya Servai v. Mayandi AIR 1934 PC 49.
Banbury Peerage Case (1823) Turn & R 138, 140, 37 ER 1049, 1050.
APPEAL from an order of the Magistrate of Kekirawa.
L.C. M. Swamadhipathy for applicant-appellant.
Respondent-respondent absent and unrepresented.
Cur. adv. vult.
DE Z. GUNAWARDANA, J.
This is an appeal from a judgement dated 20.1.1986, of the learnedMagistrate of Kekirawa dismissing the application made by the Applicant-Appellant (hereinafter referred to as appellant) for maintenance forherself and her child named Wimal Dilruksha.
At the inquiry the marriage was admitted but the paternity of the saidchild was denied by the Respondent-Respondent (hereinafter referred toas respondent).
The appellant’s case, briefly, was that she married the respondent on8th January 1981. She produced the marriage certificate marked P1. Shewas taken to the house of the respondent, on the same day, that they gotmarried and lived with the respondent at his house in Pilimatalawa for oneyear and three months. When she was expecting the said child she wasbrought back to her parents’ house towards the end of March 1982. Thesaid child was bom on 7.5.1982. The birth certificate of the said child wasproduced marked P 2. After she was brought back to her parents’ house,the respondent did not come to see her, till after the child was born. Therespondent did not come when he was informed of the birth of the saidchild. About three months after the birth of the child he had come one nightand left early in the morning on the following day. Thereafter he had notcome.
The respondent's position was that he is not the father of the said child,although he admitted that there is a legally contracted marriage. Accordingto him he took the appellant to his house at Pilimatalawa on 8.1.1981, theday of the marriage itself. That day he had sexual intercourse with theappellant in the night and he found that she was not a virgin. When hequestioned her she had explained that she had a relationship with aperson by the name of Wanasinghe, who was working in the workshopof one Ratnayake Aiya, and that she lost her virginity due to thatrelationship. On 17.1.1981 the respondent had gone with the appellantto the Grama Sevaka of his village and made a complaint, which wasproduced marked V x 3. On that occasion the said Grama Sevaka hadrecorded the statement of the appellant also, which statement wasproduced marked V x 4. In that statement she has stated how she losther virginity prior to marriage, as explained by her to the respondent.Thereafter the respondent had brought back the appellant to her parent's,house on 19.1.1981 and made a complaint, that day, to the GramaSevaka of that village viz. Negampaha. This statement was producedmarked X4. In that statement he had recalled what happened upto thenand stated that he has handed over the appellant to her parents that day,and that he intends to get the marriage dissolved. After making thestatement he had gone back to his village, leaving the appellant with herparents, and thereafter had nothing to do with her.
In a case such as this, where marriage is admitted and the birth of thesaid child during the continuance of the marriage is proved, the questionthat arises for consideration is whether the respondent has shown that hehad no access to the mother at any time when the said child could havebeen conceived because the provisions of section 112 of the EvidenceOrdinance would be applicable in such a situation. Section 112 of theEvidence Ordinance states:
“The fact that any person was bom during the continuance of a validmarriage between his mother and any man, orwithin two hundred andeighty days after its dissolution, the mother remaining unmarried, shallbe 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 atany time when such person could have been begotten or that he wasimpotent.”
In view of the said presumption created by section 112 of EvidenceOrdinance the appellant is entitled to rely on it to prove the paternity of the
said child. The burden is on the respondent to disprove the saidpresumption. According to section 112 it is conclusive proof that respondentis the father of the said child because the said child was born during thecontinuance of a valid marriage, unless respondent shows that he had noaccess to appellant at the time the said child could have been begottenor that he was impotent. Section 4(3) of the Evidence Ordinance definesconclusive proof as:
“When one fact is declared by this Ordinance to be conclusive proofof another, the Court shall on proof of the one fact regard the other asproved, and shall not allow evidence to be given for the purpose ofdisproving it.”
Although conclusive proof is defined in that manner in the EvidenceOrdinance, section 112 itself permits evidence to be given forthe purposeof disproving that the child is the legitimate child of that man. What thenis the standard of proof required to rebut the presumption of legitimacyunder section 112? The words used in the section are “unless it can beshown". Basnayake, J. (as he then was) has stated in the case of Pesonav. Baborichi Bass (1) that,
“I think the word “shown” has been advisedly used by the draftsmanwho appears to have avoided in this context the better known expression“proved”
The word “shown” is a familiar expression and is a word which has awide range of meaning according to its context. As it is not defined in theEvidence Ordinance it should be given a meaning appropriate to thecontext. In view of the very strong presumption on the other side, I thinkit should be oonstrued in the sense of “to convince”, “to make clear”.
Lord Langdale in Hargrave V. Hargrave (2) with reference to thedegree of proof required has pointed out that –
‘Throughout the investigation, the presumption in favourof legitimacyis to have its weight and influence, and the evidence against it ought,as it has been justly said, to be strong, distinct, satisfactory andconclusive.”
It is to be noted that such high degree of proof in regard to non-accssis insisted upon for reasons of public policy as well. Forthe sake of orderlysociety, public policy requires that the legitimacy of a child born out of
wedlock should not be lightly disturbed. Lord Chancellor Eldon in Headv. Head (3) set down the correct approach to that question as follows
“Whenever it is necessary to decide that question great care mustbe taken, regard being had to this, that the evidence is to be receivedunder a law, which respects and protects legitimacy, and does notadmit any alteration of the status etconditioot any person, except uponthe most clear and satisfactory evidence.”
It must be mentioned here that another reason why such high degreeof proof is insisted upon is because the proof of non access by the manwould necessarily mean attributing an adulterous union to the woman,consequentially the bastardisation of the child born out of that illicit union.
In such a situation it is only fair that courts would require the samestandard of proof as in a matrimonial offence. In the case of Churchman,v. Churchman (4), Lord Merriman in discussing the proof required in amatrimonial offence has observed that –
"The same strict proof is required in the case of a matrimonialoffence as is required in connection with criminal offences properly socalled.”
Thus it appears that the presumption of legitimacy is rebuttable only byadducing cogent, clear and convincing evidence. This would in effectmeanthatthe man must prove, on evidence, which would not admit of anyreasonable doubt, that he had no access.
The word “access" has been the subject of interpretation in severalcases. In Jane Nona v. Leo (5) it was held to mean “actual intercourse”.However in Ranasinghe v. Sirimanne (6) following the Privy Councildecision in Karapaya Servai v. Mayandi(7) it was interpreted as meaningno more than opportunity of intercourse. It appears that while the FullBench of the Supreme Court in Jane Nona v. Leo attributed a restrictedmeaning, the Privy Council in Karapaya'scase gave a wide interpretationto the word access. In my humble a view, Lord Eldon in Banbury Peeragecase, (8) has given a balanced exposition of the word “access”. Hestates
“I take them to have laid down, so as to give it all the weight whichwill necessarily travel along with their opinion, although not a judicialdecision, that where access according to the laws of nature, by which
they mean, as I understand them, sexual intercourse, has taken placebetween the husband and wife, the child must be taken to be the childof the married person, the husband, unless on the contrary it beproved, that it cannot be the child of that person. Having stated thatrule, they go on to apply themselves to the rule of law where there ispersonal access, as contradistinguished from sexual intercourse, andon that subject I understand them to have said, that where there ispersonal access, under such circumstances that there might be sexualintercourse, the law raises the presumption that there has beenactually sexual intercourse, and that that presumption must stand tillit is repelled satisfactorily by evidence that there was no such sexualintercourse.”
Having considered the above observation of Lord Eldon, Basnayake,
J.(as he then was) in Pesona v. Babonchi Bass at page 455 hasexpressed the view that—
"It appears from the above statement that the word "access”connotes that not only actual intercourse but also personal accessundercircumstances which raise the presumption of actual intercourse.Mere opportunity of intercourse, under circumstances which do notraise the presumption of actual intercourse, in my view, is not “access"within the meaning of section 112.”
The said observation of Basnayake, J. (as he then was), in my view,aptly sums up the correct approach to the interpretation of the word“access”. Such an interpretation, I believe, would enable equity and goodsense to prevail, as is required in the context of such a situation.
I would now venture to consider the evidence in the case in the light ofthe legal principles enumerated above. Although there is no burden onthe appellant to go further and prove paternity, other than to adduceevidence necessary to bring the presumption under section 112 intooperation, it is nevertheless necessary to consider her evidence in orderto assess the weight that should be attached to her allegation thatrespondent is the father of the said child. For, in my view, if the allegationis proved to be false, it would support the denial of paternity by therespondent.
The learned Magistrate had disbelieved the appellant and rejected herevidence for several reasons. He has pointed out that the appellant has
given false evidence. When she was shown letter matted V1, at first, shehas admitted that the hand writing was tier's, and that it had beenaddressed to herfather. In reply to a question by court she has confirmedthat it was her handwriting. Soon thereafter, she has said that it was amistake and that she does not know anything about the said letter. Inconsequence of an objection taken by the counsel for the appellant, thesaid letter was given to the appellant to read it fully. Having read the lettershe has again stated that she does not know anything about the letter orthe handwriting in it. She has also admitted in evidence that she at firstaccepted that the handwriting of the said letter v 1 was her handwriting,but that later she denied that fact. Although in cross examination she hadsaid that she did not know anything about the said letter V 1, in re -examination she has changed her position and stated that the respondentabused her and got her to sign a paper having held her by her neck. Sheadded that she did not read the said letter V 1 and that the respondentgot her to sign it by force.
It should be noted here that it was important for the appellant to denythe writing of the letter V1 because if she admitted it, it would havedirectlycorroborated the position taken up by the respondent. Because letter V1describes in detail the circumstances under which she lost her virginity,which is the reason why, the respondent did not want to continue with themarriage.
In another instance she has directly admitted, that she uttered afalsehood, when she denied having written any letters to the respondentprior to marriage, she stated as follows
It is to be seen that her evidence is inconsistent and has changed herposition regarding certain matters from time to time. In regard to letter V1 , she had at one stage admitted that the said letter was in herhandwriting but has later denied that position. In respect of thecircumstances under which the said letter was signed she has givendifferent versions. When the letter dated 14.7.90 (marked X2) was shownto the appellant at first she admitted the handwriting as her’s but laterdenied having written a letter like that.
In addition the evidence of the appellant has been contradicted by herown witnesses. According to her the respondent did not come to see her2-
after she was brought back to her parents' house in March 1982, till afterabout 3 months of the birth of the said child. She does not mentionanything about the respondent working the fields with herfather after shewas brought back to her house. However witness Tikiribanda, who is anuncle of the appellant, has stated that the respondent came and workedin the fields when the appellant was at her parents' house, expecting thechild. Witness Ranbanda who was called by the appellant, also statedthat the respondent worked the field with her father. The respondenthelped in the threshing of the paddy in April 1982. He had seen therespondent in the house of appellant's parents at the time she waspregnant. The appellant’s father also has stated that the respondentcame with the appellant and worked the fields with him. After the paddywas harvested and sold he took the money and went away. Therespondent had come back a few days afterwards and had gone awaybefore he came back from the pola.
The evidence of the appellant is further contradicted by the evidenceof witness Jayaweera Rajapakse, the Grama Sevaka of Arambewela.Although the appellant has stated that statement marked V x 4 was notread to her and she asked to sign the statement by the Grama Sevakastating that it was for the transfer of the pension card and kerosene card,the Grama Sevaka has categorically denied this position. The appellantclaimed that she lived in the house of the respondent till March 1982, butthe said Grama Sevaka in his evidence has stated that, during that periodhe had been to the respondent's house, at least on two occasions, but hasnot seen the appellant there. He has denied that he tricked the respondentto sign the statement. When one examines the contents of the statementmade by respondent to the said Grama Sevaka (marked V x 4) and theletter V1 one can not help but notice the remarkable similarity in regardto the details of the incident in which she has lost her virginity. It is hardto believe that the respondent or the said Grama Seveka contrived sucha story. There is corroboration of the said statement (marked V x 4) andletterV 1 in the evidence of appellant herself, where she has admitted inher evidence, that she has a relation by the name of Ratnayake who hada workshop at that time, as he was building a house. Furthermore theappellant has not made any suggestion or led any evidence to show thatthe said Grama Sevaka’s evidence should not be believed. In any eventit is clear that he has attended to this matter purely in his official capacityand there is no reason to doubt his credibility.
Thus it is seen that the evidence of the appellant is unreliable andunsatisfactory and the learned magistrate was right in disbelieving her
and rejecting her evidence. Although the falsity of the allegation made byappellant would tend to corroborate the denial of paternity by therespondent, the burden nevertheless still remains with the respondent torebut the presumption under section 112 of the Evidence Ordinance, oncogent and convincing evidence. Therefore I will now examine theevidence adduced by the respondent.
The respondent giving evidence on his own behalf has denied that heis the father of the said child, and that after he handed overthe respondentto her parents on 18.01.1981, after making the statement (marked x 4)to Grama Sevaka of Negampaha, he had nothing to do with the respondent.It is important to note that in the said statement itself he has stated thathe handed over the respondent to her parents on 18.01.1981. He hasfudherstated that he had stopped having sexual relations with respondentsince the night of the day of marriage. In his earlier statement (MarkedVx3) too, which he has made to the Grama Sevaka of his village,Arambewela, on 17.01.1981, he has taken up the same position, that hehas stopped sexual relations with the respondent after the first night. Thisposition has been admitted by the appellant in her statement to theArambewela Grama Sevaka on 17.01.1981, which was produced markedV x 4. Hence it is hard to believe that having made all these statementsand afterbringing the appellant backto her parents' house, the respondentwould have taken back the appellant to his village again, to live ashusband and wife, as suggested by the appellant.
In regard to the making of the statement both Grama Sevakas haveconoborated the respondents. The statements having being produced inthe case shows that the contents of them bears out the position taken upby the respondent. The very act of going to the Grama Sevaka shows thatthe respondent intended to terminate this relations in a positive way. It canbe in a sense said to be a mental severance of the union, and he intendedto have it recorded by a legally competent authority. The act of taking theappellant to her parents’ house shows that he intended a physicalseparation. This has resulted in a physical inability of access, as theresidences of the parties are separated by a considerable distance.
The cause for the failure of the marriage appears to be the distrust therespondent had developed towards the appellant, after he came to knowher reprehensible conduct, prior to her marriage. It is in this context thatthe contents of the letter V1 plays an important role. It is also significantto note that what is stated in the statement (marked V x 4) to Grama
Sevaka Arambewela by the appellant, materially corroborates the detailsas given in letter (V1) as to how she lost her virginity. Therefore the causefor the failure of the marriage and the subsequent separation of theparties as alleged by the respondent is corroborated by the said letter (V1)and the statement marked (V x 4).
As regard the assertion by the appellant that she lived in the house ofthe respondent from the day of the marriage upto March 1982, till she wasbrought back to her parents' house, we have her dismal performance inthe witness box, which showed that she did not know even the names ofthe brothers’ and the sisters’ of the respondent. She did not know thename of the village and the name of the village temple. The learnedMagistrate has pointed out that she was unaware that even the motherof the respondent was dead. Furthermore the Grama Sevaka ofArambewela, the village of the respondent, has stated that he hadoccasion to visit the respondent's house at least on two occasions duringthe relevant time but he did not see the appellant there. All these go toshow that the appellant did not live with the respondent in his house,during the relevant period.
Having carefully considered ail these items of evidence, I am of theview that the respondent has proved beyond reasonable doubt that, hehad no access to the appellant during the period at which the said childcould have been conceived. Accordingly I hold that the respondent hassuccessfully rebutted the presumption of paternity as contemplatedunder section 112 of the Evidence Ordinance. Therefore the claim formaintenance made from the respondent on behalf of the said child shouldbe dismissed.
However the claim for maintenance by the wife stands on a differentfooting, because a valid marriage is still subsisting between the appellantand the respondent, as evidenced by the marriage certificate (markedP1) and admitted by the parties. The Counsel for the appellant submittedthat, therefore, even if the claim for maintenance of the child is dismissed,the wife's right to claim maintenance will prevail. It is to be seen thatsection 2 of the Maintenance Ordinance, per se, gives a wife the right toclaim maintenance from her husband. But, section 4 imposes certainrestrictions on that right, in the following manner
“No wife shall be entitled to receive an allowance from her husbandunder section 2 if she is living in adultery, or if, without any sufficientreason, she refuses to live with her husband, or if they are livingseparately by mutual consent.”
It is clearf rom the above provision that a wife living in adultery is deniedthe right to claim maintenance from her husband. This provision accordswith maintaining public morals and the sanctity of marriage. I have madea finding earlier, that the respondent had no access to the appellantduring the time when the said child could have been begotten. It is implicitin that finding that the appellant has had an adulterous union. This wouldmean that the appellant is living in adultery and therefore would not beentitled to claim maintenance from the respondent. Hence I hold that theclaim for maintenance made by the appellant for herself, from therespondent, should also be dismissed.
Since I have decided to dismiss the appeal on the grounds statedabove, it is not necessary to go in to the validity of the objection taken bythe respondent to the affidavit filed by the appellant in the MagistrateCourt in this case.
Accordingly the appeal is dismissed without costs.
WIJESUNDERA v. WIJEKOON