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Present: Dalton J.
AMINA UMMA v. NUHU LEBBE.
778—P. C. Kurunegala, 30,625.
Maintenance—Application by married woman on behalf of child—Birthof child thirty-one weeks after marriage—Denial of paternity—Presumption of legitimacy—Evidence Ordinance, s. 112.
Where a married woman applied for maintenance on behalf ofa child and the husband denied paternity,—
Held, that evidence that the child was bom thirty-one weeksafter marriage was not sufficient to displace the presumption oflegitimacy arising under section 112 of the Evidence Ordinance.
PPLICATION for maintenance brought by the applicantagainst her husband on behalf of a child stated to be
three months old. Defendant admitted the marriage, but deniedpaternity. The parties were married on October 19, 1925, and thechild was born on May 25* 1926. The Magistrate dismissed theapplication on the ground that that it was unlikely that the childcould have been procreated as the result of intercourse aftermarriage.
No appearance for appellant.
Vethavanam, for respondent.
December 21, 1926. Dalton J.—
This appeal arises under the Maintenance Ordinance, 1889. Theapplicant, Amina Umma (appellant), stated in her complaint thatthe respondent Ana Nuhu Jliebbe was married to her and that achild stated to be three months old at the time of the complaint(August 17, 1926) was born to them. She pleads that he desertedher some eight months -prior to the complaint. Defendant(respondent) did not deny the marriage, but denied the paternityof the child.
The facts disclosed in the evidence are very meagre. Both partieshowever had full opportunity to put their respective cases beforethe Court. They are, to judge from the names, both Muhammadansand have been dealt with as such, although I can find no evidence
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on the record on the point. Applicant has been previously marriedthree or four times and respondent admits he his now living withhis seventh wife, the previous ones having been divorced by him orhaving died. The applicant was bis fifth wife. It is admitted theywere married on October 19, 1925. The child in question was bornon May 25,1926. There is no evidence whatsoever to show whetheror not at birth the child had the appearance of a fully matured orfull term child, or whether it was a case of premature delivery. Allthat is stated is that the child is healthy, which is not of very greatassistance on this point. Applicant, however, states that there wassexual intercourse between them prior to the marriage althoughthis is denied by the husband. Soon after the marriage troublearose between the parties. The applicant says it was due to thepresence of her other children, respondent saying that it was due tothe discovery that the woman was pregnant. This, he says, hediscovered when he went to his house with the woman, but headmits he continued to live with her if only for a few days. Otherindependent evidence goes to show that he lived with her longerthan this. Ismail Arachchi, called, stated they lived together forabout two months, whilst the head Moorman states that respondentcame to him in November saying he could live with applicant nolonger. He denies that either applicant or respondent mentionedthe pregnancy of the former; no cause for the trouble between theparties being mentioned to him. After trying to "settle the dispute,he says the marriage was dissolved in December. There is noevidence, whatsoever, to suggest that applicant was on intimateterms with anyone else prior to the marriage who could be the fatherof her child. The Magistrate has dismissed her claim however onthe ground that it is “ highly unlikely ” that the child could havebeen procreated as the result of intercourse after marriage. Hethen continues “ the parties being unmarried at the time when thechild mu3t have been procreated ” the burden of proof lay onapplicant to show defendant was the father.
It is laid down by section 112 of the Evidence Ordinance that thefact that any person was born during the continuance of a validmarriage between the mother and any man, or within two hundredand eighty days after its dissolution, the mother remaining un-married, shall be conclusive proof that such person is the legitimateson of that man unless it can be shown that that man had no accessto the mother at any time when such person could have beenbegotten, or that he was impotent. This is a statutory recognitionof the principle underlying the maxim, pater est quern nuptiae demon-slrakt, which is recognized in both Roman-Dutch and English law.
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• Damon J.
AminaXJmma v.Nuhu Lebbe
(Banbury Peerage, case.1) The marriage having been dissolved inDecember, 1925, the child was not born during the continuation ofthe marriage, but there is no question that it was born within twohundred and eighty days of its dissolution. Taking the dissolutionto have been even on December 1, the child was born one hundredand seventy-five days thereafter. The question to be answeredthen is, has the defendant shown that he had no access to themother at any time when the child could have been begotten andborn in the course of nature. He admits intercourse after themarriage.
Between the date of marriage and birth is a period of two hundredand seventeen days or thirty-one weeks or seven and three-fourthlunar months. As I have pointed out, there is no evidence placedbefore the Court by either party as to the appearances or conditionof the child at birth ; three months after birth the child is said tobe healthy. Has the defendant then shown that he had no accessto the mother at any time when the child could have been begottenand born in the course of nature ? That evidence, havingregard to the provisions of section 112, must be strong ahdsatisfactory.
The Magistrate has based his decision upon the conclusion thatthe birth of the child as the result of postnuptial intercourse is, ifnot possible, at any rate highly unlikely. He has however placedthe onus upon the applicant and not upon the respondent. Furthermedical authority does not support his conclusion to the extent towhich he goes. Several cases are set out in Taylor’s MedicalJurisprudence, 7th ed., p. 44 et seq. The learned author pointsout that whilst all births before thirty-eight weeks may be regardedas premature, and all those after the fortieth week as protracted, itis universally admitted that children born at the seventh month ofgestation are capable of living, although they are more delicate andin general require greater care and attention to preserve them. Hediscusses various cases and concludes that it is established fromthem that children born at the seventh and even at or about thesixth month may be reared. In this connection I would especiallycall attention to the two cases cited by him at pages 48 and 49. Hepoints out that in these two cases six months children were livingand healthy after four months and three and a half years respec-tively, and he calls attention to the great injury which may be doneby speculative medical opinions against the chastity of the partiesconcerned. Another authority also comes to the conclusion that it1 (1811) 1 Sim. and St. 153.
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-would be unjust to brand a child with illegitimacy, or its motherwith want of chastity, merely because a six months’ child is bom aliveand viable (Luff, Forensic Medicine, p. 233).
The principle laid down in Gaskill v. Gaskill,1 having regard to theprovisions of section 112 of the Evidence Ordinance, is applicablehere. That was a case of possible prolonged gestation. As pointedout in Smith’s Forensic Medicine, p. 241, from a medicalstandpoint, it is much easier to give an opinion as to an abnormallyshortened period than to a protracted one for the condition of theimmaturity of the child allows a more accurate estimate of age tobe given. The husband petitioned for a divorce on the ground ofhis wife’s adultery. He had left his wife on October 4, 1918, andsailed for England on October 12. He did not return untilDecember, 1919. On September 1, 1919, his wife gave birth to achild. There was no evidence against the wife except the lapse oftime between coition and the birth of the child, namely 331 days.The Lord Chancellor (Lord Birkenhead) adjourned the hearing ofthe action, and requested the Attorney-General to attend as amicuscuriae and call the best specialist evidence which could be procured.Evidence was thereafter given by three leading medical authoritieson the subject to the effect that such an interval could not in thepresent state of medical knowledge be said to be impossible. Indismissing the husband’s petition the Lord Chancellor states he hasno doubt as to the principles upon which he should act in coming to aconclusion of fact upon the evidence. He quotes with approvalthe decision of Lord Ljmdhurst in Morris v. Davies.2 Lord Lynd-hurst himself cites with approval the opinion of the Judges in theBanbury Peerage case (supra). He points out that “ presumption oflaw is not lightly to be repelled. It is not to be broken in upon orshaken by a mere balance of probability; the evidence for thepurpose of repelling it must be strong, distinct, satisfactory, andconclusive.”
AminaUmma v.JS'uhu Lebbe
In Gaskill v. Gaskill (supra) the only evidence of adultery was theadmittedly abnormal length of pregnancy. In this case the onlyevidence adduced by the respondent that he is not the father of thechild is the admittedly shortened period of gestation. Adoptingthe words of Lord Birkenhead, I can only find the applicant guiltyof unchastity before marriage if respondent’s story is true and therespondent not the father of her child, if I come to the conclusionthat it is impossible, having regard to the present state of medicalknowledge and belief, that the respondent can be "the father of the
1 (1921) Pr. p. 425.
1 5 Cl. and F. 265.
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AminaVmrna v.Nuhu Lebbe
child. Prom the authorities I have set out above it is manifest thatthere is no such impossibility. Therefore the respondent has foiledto discharge the onus placed upon him and the applicant is entitledto an order for the maintenance she claims.
The appeal is allowed with costs in the Court below and the casewill be sent back for the Magistrate to fix the amount ofmaintenance.
AMINA UMMA v. NUHU LEBBE