– The applicant alleges that the defendant is the father of a childwhich was bom to her on July 11, 1918, and sues him for its mainte-nance under section 3, Ordinance No. 19 of 1889. At the time of20-xxv. •12(60)29
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the child's birth the applicant was the legal wile of a certain Abaran-hamy, who married her several years prior to that date. The defendantdenies paternity, and the applicant has to rebut the presumptionraised by section 112 of the Evidence Ordinance that the child is theson of Abaranhamy. To do so she must prove that Abaranhamy hadno access to her at any time when the child could have been begotten,or that he was impotent. There is no suggestion of impotency. Thequestion for decision is, therefore, whether there was possibility ofaccess. Under the Roman-Dutch law the period of pregnancy waslimited to a minimum of seven and a maximum of eleven months. Thechild, therefore, must have been conceived between August 11 andDecember 11, 1917. Now, the applicant and her mother state thattowards the end of 1916 Abaranhamy quarrelled with the applicant andleft her, and that a few weeks later the defendant, under whomAbaranhamy was employed, induced her to go with the defendant toNegombo on the pretext that Abaranhamy was ill in Negombo andwished to see her. The applicant states that after her arrival in Negomboshe never saw Abaranhamy, but was induced by the defendant tobecome the defendant’s mistress ; that she lived with him as such, and.some months later bore him the child in question. She further statesthat the defendant duly maintained her and the child until about themiddle of 1922, when he induced her to accept a lumpsum of moneyin composition of all future claim on him. The defendant himselfis said to have been legally married to another woman about the timewhen the child was born, and she seems to have objected to thecontinued presence of her husband’s mistress in the same town asherself.
Now, the only proof that Abaranhamy did not have access to theapplicant between August 11 and December 11, 1917, is the statementof applicant herself. There is no proof that it was impossible for himto have access. Indeed, quite apart from the positive evidence calledby the defendant, the probabilities are that Abaranhamy was himselfin Negombo during that period. For he was employed by the defend-ant, and had admittedly lived with the applicant in Negombo before
they quarrelled. No doubt the defendant did keep the applicantas his mistress for some time. But she has not proved the impotencyor impossibility of access of her legal husband, and has therefore notrebutted the presumption that her husband is the father of her child.
I accordingly dismiss her application.
H. F. Perera (with him Sri Nissahka), for the applicant,appellant.—Recent cases show that the question of access isa question of fact which can be proved as any other fact. Section^112 of the Evidence Ordinance merely embodies the English lawon the subject. The decision in Sopi Nona v. Marsiyan1 was notapproved by Hutchinson C.J. in Robot v. De Silva2 and by WoodRenton C. J. in Ango v. Podi Singho 3 and by Perera J. in KaloNona v. Silva 4 and by Shaw J. in Rosalina Hamy v. Suwaris.5
The English law is clear on the point. A child born of a marriedwoman during the continuance of the marriage, or within theperiod of gestation, after its termination is presumed to be legiti-mate. This presumption may only be rebutted under the English
1 (1903) 6 N. L. if. 379.8 (1911) IS N, L. if. 511.
* (1907) 10 N. L. if. 140.4 (1912) 15 N. L, if. 508.
* (1920) 23 N. L. R.68.
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law by proof that the husband was impotent at the time when the *223.child might have been begotten, or had no opportunity at such Jane Nonatime for sexual intercourse with his wife, or by cogent evidence *that though such opportunity existed, nevertheless the child washot the offspring of the husband. Counsel cited Head v. Head}
Banbury Peerage Case} Morris v. Davies} A decision of threeJudges when the Supreme Court consisted of four Judges is nota Full Court and is not binding on this Court.
Wife can give evidence as to non-access of the husband. Therule on the point has been modified in England in recent times.
The husband or wife is jinder no such disability in Ceylon.
[Gabvin J. referred to the Russel Case.]
Counsel cited Rozairo v. Ingles } Howe v. Howe} Menchy Hamyv. Hendappu} Podina v. Soda} Pavistina v. Aron} Perera v.
Singho} Kaliyattan v. TamotarampUlai,10 Ludhamy v. Fonseka}1Batcho v. David}2 See also 5 S. C. C. 160 ; 2 N. L. R. 261 ; 7
N.L. R. 173 ; 7 N. L. R. 364 ; 6 N. L. R. 169.
December 20,1923. Bertram C.J.—
The point reserved in the present case is in fact one which hasalready been considered by a bench of three Judges in Sopt Nonav. Marsiyan (supra). The question is a question of interpretation ofsection 112 of the Evidence Ordinance, 1895, and in particular asto the meaning of the word “ access ” as used in that section.The section declares that the fact that a child was bom during thecontinuance of a valid marriage shall be “ conclusive proof ” ofits legitimacy, unless it can be shown that “ the man had no accessto the mother at any time when such child could have been begottenor that he was impotent.’* In Perera v. Podi Singho (supra), Bonser
J. for the first time expressed the opinion that in this section“ access ” means “ possibility of access,” and this opinion was subse-quently adopted by all three Judges in SopiNona v. Marsiyan (supra).They based their opinion upon an expression of Lord Redesdale inhis judgment in the Banbury Peerage Case (supra). Lord Redesdalethere treated “ non-access ” as being equivalent to “impossibilityof access,” and the learned Judges above referred to appear tohave formed the conclusion that section 112 was drawn with directreference to the law as thus formulated by Lord Redesdale. Theinterpretation involved the further conclusion that the intention ofthe section was not to declare the English law, but to depart from
1 (1823) 1 Sim. ds St. 150.
8 (1811) 1 Sim. d> St. 153 (H. L.).
(1836) 5 Cl. dtP. 163.
1 (1893) 18 Bom. 468.
(1913) 38 Mad. 466.
8 {1862) Ram. 1860-62, p. 90.
(1900) 4 N. L. R. 109.
(1898) 3 N. L. R. 13.
• (1901) 5 N: L. R. 243.
(1887) 8 S. C. C. 119.
(1890) 9 S. C. C. 96.
« (1890) 1 S. C, R. 25.
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it on a most material particular, and this further conclusion theJudges adopted.
This was the unanimous opinion of three distinguished Judgesof our Court, nevertheless it is now recognized that this is anopinion which is very difficult to follow. Why, in the midst of along discussion, should this sentence of Lord Redesdale have beensingled out as stating the English law. There are other and moreauthoritative statements of the English law in which the expression“ access ” is quite differently interpreted. In the Banbury PeerageCase (supra) the English law was solemnly formulated by theunanimous opinion of all the Judges. That opinion took note of theconfusion that might arise with regard to the meaning of the word“ access.*' In one sense it might be interpreted as meaning“ opportunity for intercourse,” in another sense it might be inter-preted as meaning “ actual intercourse.” To prevent this confusionfrom arising, they explained in express words their own inten-tion :—
“ The non-existence of sexual intercourse is generally expressedby the words ( non-access of the husband to the wife,’and we understand those expressions as applied to thepresent question as meaning the same thing, because inone sense of the word “ access,” the husband may besaid to have access to his wife as being in the same placeor the same house; and yet, under such circumstances,as instead of proving, tend to disprove that any sexualintercourse took place between them.”
Now, the judgment of Lord Redesdale, from which the sentencein question was quoted, is very difficult to find. It was pro-nounced in the discussion, in the House of Lords subsequent to thedelivery of the unanimous opinion of the Judges. This opinion isfully reported in 1 Sim. & St.9 but the discussion in the House ofLords is, as a matter of fact, not reported in any regular report.It appears, however, to be quoted in two works—the one being aMr. Le Marchant’s report of the Gardner Peerage Case, the othera Treatise on Adulterine Bastardy by Sir Harris Nicolas. But thejudgments delivered in the course of that discussion are freelycited by the Lord Chancellor in his judgment in Morris v. Davies(supra). The passage from Lord Redesdale is among those cited inthis judgment (p. 247), and I strongly suspect that it is from thissource that our own Judges derived it.
But the aingnlttr thing is that the part of the judgment of theLord Chancellor in which the passage is cited is prefaced by thisobservation: “ In all these cases much confusion arises from thpvarious senses in which the word ‘ access' is used.” The LordChancellor cites this passage as an instance of this confusion, and
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he proceeds to lay down the law on the same principles as thoselaid down in the opinions of the Judges in the Banbury PeerageCase (supra), making it quite clear that he uses the word “ access ”in the sense of actual intercourse.
There is not the least likelihood, therefore, that the draftsmanof the Indian Evidence Act used any statement of the English lawin which the word “ access ” was used in this special and confusedsense as the basis of his draft. It is still less likely that havingadopted it as his basis, he then proceeded to depart from it byintroducing an important modification of the English law.
It seems certain, therefore, that the word “ access ” in section112 should be interpreted in the sense in which it was" interpretedin the unanimous opinion of the Judges in the Banbury PeerageCase {supra). But we are met with an initial difficulty. There is adecision of a Court of three Judges which espressos the contraryview. Even though we ourselves take the view of the law aboveexplained, are we, in the face of this decision, entitled so todeclare it. Or must all be reduced to the expedient of “ explaining99the judgments of these Judges in a sense which was in fact foreignto their minds ? Hutchinson C.J. in Robot v. De Silva {supra) whodissented from the view expressed in Sopi Nona v. Marsiyan{supra), suggested that ail that the Court meant was that “ accessmust be shown* to have been impossible consistently with thefacts proved.” Everyone must recognize the unsatisfactory natureof this means of escape. Yet another escape has been suggested—see the judgment of Wood Renton J. in Ango v. Podi Singho {supra).It appears that when the case of Robot v. De Silva (supra) wentto the Privy Council, respondent’s counsel, Mr. Arthur Cohen, K.C.,disclaimed the contention that it was necessary to prove absoluteimpossibility of access. The point was accordingly not argued, andit was suggested that, in view of what thus happened in the PrivyCouncil, it might be necessary for us to consider whether the earlierdecisions of this Court ought to be followed. It would, however.,hardly be satisfactory, in the absence of any expression of opinionby the Privy Council, that we should decide not to follow aconsidered judgment of this Court simply because an eminentcounsel of the English Bar felt that it could not be supported.It is necessary, therefore, though I undertake the task mostreluctantly, to consider what is the nature of the authority whichmust be attributed to a decision of a Court composed of threeJudges at a time when the full membership of the Court wasfour.
From the earliest years of our history special importance haBbeen attributed to the considered opinion of the 11 Full Court.”The Charter of 1833 authorizes any Judge to reserve any questionfor the decision of the Judges of the Court collectively. Seesections 43 and 47. This provision was repeated in Ordinance
Jam Nonav. Leo
No. 11 of 1868, and there was a corresponding provision in section62 Of the Courts Ordinance, No. 1 of 1889. But iu 1901 there wa/a change in the constitution of the Court. A fourth Judge wasadded, and a special enactment was introduced into the CourtsOrdinance by section 54a. This enactment empowered theChief Justice to reserve any case for the consideration of all fourJudges, and declared that “ the decision of such Judges whenunanimous, or of the majority of them in the case of any differenceof opinion, or of the Chief Justice and any one other Judge in theevent of their opinions being opposed to that of the other twoJudges, shall in all cases be deemed and taken to be the judgmentof the Supreme Court.” -In spite of this enactment, there was aseries of cases reserved, not for four Judges, but for only threeJudges out of the four. The decisions in these cases.were treatedas “ Full Bench ” cases. This practice has prevailed down to thepresent day, and even since our numbers have been increased tofive, a Court of three Judges has been referred to in our official lawreports as constituting a Full Bench. Wendt J. in Robot v. DeSilva (supra) discussed the question as to what was to happen whena Full Bench of four Judges had to consider a previous decisionwhere the Court was constituted by three Judges out of a possiblefour. He suggested as a practical rule that “ we should notregard the Full Bench of four Judges as possessing the power to •over-rule the decision of three Judges in any matter ….whether pronounced before or after the Ordinance'of 1901 becameoperative.” He suggested two qualifications to this proposedrule: Firstly, that it must appear that the law and the previousdecisions of the Court had been duly considered before the threeJudges arrived at the decision ; and, secondly, that it must notappear “ that the decision in question* was founded on manifestmistake or oversight.” Hutchinson C.J., while assenting to thegeneral rule that a Court of three Judges, even though sitting inreview, shall be bound by the law as laid down in a previous Courtof three Judges, said nothing about Wendt J/s proposed rule asto the powers of a Court of four Judges. Middleton J. also agreedthat a* judgment of three Judges of this Court was binding on asubsequent Court of three Judges, but expressly reserved thequestion of the powers of a Court of four Judges. It cannot besaid,* therefore, that we have any decisive ruling on the subject,but there is nevertheless a very strong and continuous cursuscurias by which three Judges out of four have been considered toconstitute the “ Full Court.” Opinions have been expressed inthe most unqualified terms to the effect that a judgment of abench of three Judges is not open to re-consideration. Neverthe-less, it is necessary that we should consider this question afresh,now that our numbers have been increased to five. If a judgmentof a Court of three Judges is to bind a Court of four Judges, what
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is to happen when the judgment embodies the views of a majorityonly ? Is the opinion of two Judges to bind the four, even thoughthe other two are of a contrary opinion, and even though one ofthese two may be the Chief Justice, whose opinion is given apreponderant effect by the Courts Ordinance ? What is to happennow that our membership consists of five ? Is a judgment of threeJudges binding on the five ? Again, what is to be the case if thejudgment is a majority judgment ?. Supposing our numbers areincreased to six, is a judgment of a Court of three to bind thewhole?
The gravest inconvenience would, no doubt, arise if all thequestions determined during the last twenty years by Courts ofthree Judges and considered to be authoritatively and finallysettled were liable to be re-opened, and, no doubt, in determininga question of this hind great weight must be attributed to a long-continued cursus curias, but with due regard to that consideration,the question must be determined on principle, and the logicalprinciple seems to be that a judgment of this Court is not to betreated as a collective judgment, unless, in fact, all the Judges arepresent. Special statutory force is given to the judgment of a Courtso constituted by section 54a of the Courts Ordinance, and sucha judgment alone, in my opinion, must henceforth be consideredthe collective judgment. It would seem to follow that any judg-ment delivered at any previous time, not representing the fullmembership of the Court, should be subject to consideration by theCollective Court. I would still hold that it would not be competentfor a bench of three Judges to over-rule the opinion of a previousbench of three Judges just as, in my opinion, it is not competentfor a bench of two Judges to over-rale a judgment of two Judges(though I am aware that my brother Ennis dissents from thisopinion). Any inconvenience which might be supposed to resultfrom the rule thus formulated would be greatly mitigated bythe fact that a! bench of five Judges can only be constituted bya special order of the Chief Justice, and it would only be in mostexceptional circumstances that the Chief Justice would make suchap order where the question at issue has already been consideredand determined by a Court of three Judges.
For these reasons, I am of opinion that sitting as a CollectiveCourt, we should over-rule the judgment of the three Judges whodecided the case of Sopi Nona v. Marsiyan (supra) and that thedetermination of the learned Magistrate, being based upon thatdecision, should be declared to be erroneous. We must take it,therefore, that the question of “ access ” is a question of fact, to bedetermined by evidence in the ordinary way without any artificialrestriction. This was the principle of English law, and it was notedand endorsed in the Poulett Peerage Case.1 It is not necessary for. 1 (1903) A. C. 396.
1928 •
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U8 to remit the ease for the consideration of the facts, because weare all agreed that the facts proved in the case leave no doubtwhatever that the child was the child of the respondent.
There is, however, one subsidiary question of law which we hadocoasion to consider. It is a rule of the English law, said to befounded upon considerations of decency, that parties to a marriageshall not be entitled to give evidence as to the fact of the absenceof intercourse between them. That rule was recited and affirmedin the Poulett Peerage Case (supra), though distinguished withreference to the facts. In view of that rule, the further principle hasbeen developed that in maintenance cases, where a married womanseeks to charge a person, not her husband, with the maintenanceof her child, the fact of her husband’s non-access must first beproved by independent evidence, and that she may then, and nottill then, give evidence herself as to the parentage of the child.See Taylor on Evidence, 10th ed.y section 951. Is this rule withits corollary a rule of our own law ? It seems clear that it is not.The principles of our law with regard to the competency of wit-nesses, whether generally or with regard to any particular class ofevidence, are now formulated in chapter XI. of the Evidence Ordi-nance. That formulation is to be considered exhaustive, and thereis no occasion to have recourse to the provisions of the English lawunder section 100 of our Ordinance. This has been formally decidedin India by authoritative decisions (see Rozario v. Ingles (supra)and Howe v. Howe (supra)), and is in accordance with the opinionof Wendt J. expressed in Robot v. De Silva (supra) on page 150.In the present case the evidence of the mother as to the parentageof the child was admitted, and rightly admitted, at the initial stageof the case. Indeed, as Mr, Perera has pointed out, it would bealmost impossible to work the Maintenance Ordinance if thelaw were otherwise. See, in particular, section 14. The appeal,in my opinion, must be allowed, and the case remitted to thelearned Police Magistrate to enable him to fix the monthly rate ofmaintenance.
Ennis J.—
I agree with the order proposed by my Lord the Chief Justice,and with the reasons for the order. The decision in the case ofSopi Nona v. Marsiyan (supra) was considered in Robot v. De Silva(supra) in a review preparatory to an appeal from a decision inthe case when heard by two Judges.1 Middleton J., who wasone of the Judges who heard the earlier case of Sopi Nona v,Marsiyan (supra) explained his decisions in the earlier case, andsaid that circumstances might show that although the spouseswere living in the same village there might be no possibility of
M1906)8N.L.R. $2.
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access, and that it was a question of fact in each case. Theexplanation in Robot v. De Silva (supra) was followed by PereiraJ. in Kalo Nona v. Silva (supra), by Shaw J. in Rosdlina Hamy v.Suwaris (supra), and by myself in Harms v. Ounawardene (648—P. C.Colombo, 12,468, S. C. Min., November 2, 1923).
Daring the hearing of this appeal we were invited to express anopinion as to whether the decision of a Court of three Judges isbinding on a Court of four or more Judges. 1 am content in theinterest of finality to follow the cursus curias of the last twentyyears, and hold myself bound by such decisions.
Pobtee J.—
I have had the opportunity of reading the judgment of Ennis J.,with which I agree, and for the same reasons.
I have had the advantage of reading the judgment of myLord the Chief Justice. I agree with it as regards the interpretationof section 112 of our Evidence Ordinance, and the admissibilityof the evidence of the parties to a marriage to prove that they“ had no access to each other.” Under our law non-access may beproved by means of such legal evidence as is admissible in everyother case in which it is necessary to prove a physical fact.
On'this section Ameer Ali and Woodroffe (Law of Evidence)offer these practical and useful comments :—
“As a child bom of a married woman as in the first instancepresumed to be legitimate, such presumption is notto be rebutted by circumstances which only create doubtand suspicion; but it may be wholly removed by properand sufficient evidence showing that the husband was(a) incompetent (j); (6) entirely absent so as to haveno intercourse or communication of any kind with themother; (c) entirely absent at the period during whichthe child must, in the course of nature have been begotten ;or (d) only present under such circumstances as affordclear and satisfactory proof that there was no sexualintercourse.
“ Such evidence as this puts an end to the question, and establishesthe illegitimacy of the child of a married woman (1).
“ Where evidence of access is given, it requires the strongestevidence of non-intercourse, or other proof beyond reason-able doubt, to justify a judgment of illegitimacy. (8)Adultery on the wife’s part, however clearly .proved, willnot have this effect, if the husband had access to the wifeat the beginning of the period of the gestation, unlessthere is positive proof of non-intercourse: (1) From evidence
Ennis J.
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oi ‘ access9—as this word is used In this connection the
presumption of sexual intercourse is very strong. (2) Butevidence of access is not conclusive. It being onlyproved that the opportunity for sexual intercourse hadexisted—as that the parties lived in the same house—andthe fact itself not being proved, evidence is admissible todisprove the presumption that it did take place. Theparties may be followed within these four walls, andthe fact of sexual intercourse not only disproved bydirect testimony, but by circumstantial evidence raising astrong presumption against the fact. In other words, theproof of sexual intercourse being conclusive, the presump-tion cannot be attacked, but the evidence by which suchfact is to be established may be contradicted. (3) Torebut the presumption under this section, it is for thosewho dispute the paternity of the child to prove no-access.”
Even if the case of Sopi Nona v. Marsiyan (swpra) be considereda judgment of the Collective Court, and as such binding on us in thiscase, the effect of Robot v. De Silva (supra), which is also a judg-ment of a bench similarly constituted delivered subsequently,would justify our not so regarding it. Especially in view of the •fact that Middleton J., who took part in the decision of Sopi Nona-v. Marsiyan (supra), explained that he had intended by thatjudgment to hold that* no access meant no opportunity for sexualintercourse.
I agree also with the Chief Justice, that it is only the decisionof a Collective Court which should be regarded as binding uponanother Collective Court. As far as I am familiar with the practiceof our Court, a judgment pronounced by a bench of two Judgeshas not been regarded as binding upon another bench of two Judges,but a single Judge considers himself bound by a decision of a benchof two Judges.
Gabvin J.—
I am in complete agreement with all that has been said by myLord the Chief Justice, and would add nothing to what he hassaid, except in regard to one point, upon which there appears tobe a difference of opinion. This Court has always acted on .theprinciple that a judgment of a Full Bench of this Court, at whateverpoint in its history such a judgment was delivered, was to beregarded as final and binding on every Court in this Island, unlessand until the law declared by such judgment was over-ruled by HisMajesty’s Privy Council or altered by the Legislature. But Icannot assent to the proposition that a judgment of three deliveredat a stage in the history of this Court when four Judges constituteda Full Bench must be deemed to be the judgment of a Full Bench.
Set aside,