139-NLR-NLR-V-57-KALIKUTTY-KANAPAYHIPILLAI-Appellant-and-VELUPILLAI-PARPATHY-Respondent.pdf
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1956 Present: Viscount Simonds, Lord HadclilTe, Lord Tucker,Lord Cohen and Mr. L. M. D. de SilvaKALIKUTTY K AN APATfIIPILLAT, Appellant, and VELUPILLAIPARPATHY, RespondentPrivy Council Appeal No. 45 of 1055
S. C. 346—M. C. Ballicaloa, 10.24S-
Maintenance—EvidenceOrdinance—Section112—Birthduringmarriage—
Presumption of legitimacy—“ Mo access
■jjfon-access within the meaning of section 112 of tlio Evidence Ordinance canbe established by proof of tho abscnco of such personal contact between husbandand wife as would givo l-iso to the presumption of sexual intercourse. “ Tho■ issue remains whether on tho whole of tho evidence made available it can safelybe concluded that there was no access at a time when tho child could have beenconceived.”
In an application for maintenance in respect of an illegitimate child born on24th May, 1950, tho following facts wero established :—Tho applicant wasmarried about nine years before the hearing to ono 31.31 left her after a few
years—whether 2 or 4 is not clear—and went to live with another woman ata village called Amiamnlai some 3 or 4 miles from Kallar whero the applicant wasliving at all material times. For 5 or 7 years before the hearing tho applicantand her husband had been living opart and during the time thveo children werobom to 3I’s mistress. In August, 1949, tho applicant was living at Kallar whereshe had sexual intercourse with the defendant in his house in which sho wasresiding with him and his wife and daughter. At this time, 31 was living withhis mistress at Annamalni some 3 or 4 miles distant, but tho applicant had neverseen him from tho time ho left her.
Held, that tho facts warranted a finding of no aceoss within the meaning ofsection 112 of tho Evidence Ordinance.
dAbPPEAii by special leave concerning a judgment of the Magistrate's
Court, Batticaloa.
Stephen Chapman, Q.C., for the defendant-appellant.
No appearance for the applicant-respondent.
Cur. adv. vull.
July 24, 1956. [Delicered by Lord Tucker]—
This appeal concerns a judgment of the Magistrate’s Court of Batt icaloain Ceylon dated 31st January, 1951, whereby it was adjudged that theappellant was the father of an illegitimate child born to the respondenton 24th May, 1950, and ordered that he should pay the respondent Rs. 30a month for its maintenance.
The appellant lodged a petition of appeal from this judgment withthe Supreme Court on 19th February, 1951, but his appeal was sub-sequently rejected by the Supreme Court as incompetent on the ground.that the petition had been lodged out of time.
24—lvxc –
2J. X. B 57724-1,593 (3/50 )
The present appeal, at the hearing of which the respondent was notrepresented, comes before the Board pursuant to special leave granted 'by Her Majesty in Council on 22nd February, 1952. It involves themeaning of the word “access” in a provision of section 112 of theEvidence Ordinance of Ceylon, with regard to which there has been overthe years a considerable divergence of opinion in the Supreme Court ofCeylon.
The i>rovision reads as follows :—
•“ The fact that any person was born during the continuance of a
valid marriage between his mother and any man, or within 280 daysafter its dissolution, the mother remaining unmarried, shall be con-clusive proof that such person is the legitimate son of that man,unless it can be shown that that man had no access to the .motherat any time when such person could have been begotten or "that hewas impotent. ”‘
The respondent brought proceedings under the Maintenance Ordinanceagainst the appellant in respect of a child born to her on 24th May, 1950.
The relevant facts are as follows :—
The respondent was married about nine years before the hearing toone ]l3rlvaganam. He left her after a few years—-whether 2 or 4 is notclear—and went to live with another woman at a village called Annamalaisome 3 or 4 miles from Kallar where the respondent was living at allmaterial times. For 5 or 7 years before the hearing the respondent andher husband had been living apart and during this time three childrenwere born to Mylvaganam’s mistress.
It is not now contended that there are any grounds for disturbing thefindings of the Magistrate that the appellant and respondent had sexualintercourse in August, 1949, and that such intei course resulted in the birthof the child on 24th May, 1950, unless the appellant can invoke theprovisions of section 112 of the Evidence Ordinance set out above. Itis accordingly unnecessary to refer to the evidence upon which theMagistrate based his decision on the issue of sexual intercourse betweenthe appellant and the respondent.
For present purposes it can bo taken that the only relevant facts are(1) that in August, 1949, the respondent was living at Kallar where shehad sexual intercourse with the appellant in his house in which she wasresiding with him and his wife and daughter ; (2) that at this timeMylvaganam was living with his mistress and children at Annamalaisome 3 or 4 miles distant. . To these facts must be added the uncontra-dicted evidence of the respondent, accepted by the Magistrate, that shehad never seen her husband from the time he left her.
The question is whether as a matter of law, as the Magistrate held, thesefacts warrant a finding of no access. It was submitted by cpunsel forthe appellant that “ access ” in this section means opportunity for inter-course in the geographical sense that it was physically possible for theparties at the relevant time to have had sexual intercourse if they hadso desired and consequently that in order to prove non-access impossibilityof the creation of such opportunity must be established.
In 1923 this question was considered in Cc3'lon by a, full Bench inthe ease of Jane Nona v. Leo *, where a previous decision in the case ofSopi Nona v.-Afarsiyan* was overruled and it was held that “access ”means “ actual intercourse Subsequently in 1946, Howard C.J.,in Banasingfie v. Sirimanna 3, held that in view of the decision of thePrivy Council in ICarapaya Scrvai v. Jlayandi on the corrcsjjondingsection of the Indian Evidence Act (which is in identical language savefor the omission of the words “ or that he was impotentJane Nona'scase could no longer be considered as binding on him, and that “ access ”should be interxneted as meaning "possibility” or “ opportunity ”of intercourse. This decision was followed in Sellidh v. Sinnammah 5.
In 1948, however, Basnayake, J., in Pesona v. Babonchi Baas ®, andin 1950 Swan J., in Kiri Banda v. He-masinghc7, considering the PrivyCouncil decision on an Indian Act not binding on them, felt themselvesfree to revert to and follow the full Bench decision in Jane Nona (supra).
In this state of the authorities their Lordships consider it is desirablethat they should endeavour to state what is in their view the true meaningto be given to this word in the context in which it ajjpears in thisOrdinance. They are of opinion that the language of this section, thoughnot purporting or intended to reproduce exactly the English law on thissubject, was clearly influenced by the English legal outlook on the subjectmatter as disclosed in the authorities in the course of years in which theword “access ” so frequently appears.'
It is true that the word has not in every case been used in preciselythe same sense, but perhaps for present purposes the passage which ismost helpful is the one referred to by Basnayake, J., in the case of Pesonav. Babonchi Baas (supra) at page 455, "where he quotes the words usedby Lord Eldon in Head v. Head 8, with reference to the opinion of theJudges in the Banbury Peerage Case. It rims as follows :—
“I take them to have laid down, so as to give it all the weightwhich will necessarily travel along with their opinion, although nota judicial decision, that where access according to the laws of nature,by which they mean, as I understand them, sexual intercourse, liastaken place between husband and wife, the child must be taken tobe the child of the married person, the husband, unless on the contraryit be proved that it cannot bo the child of that person. . Havingstated th.it rule, they go on to apply themselves to the rule of lawwhere there is personal access, as contradistinguished from sexualintercourse, and on that subject I understand them to have said,that where there is personal access, under such circumstances thatthere might be sexual intercourse, tho law raises the presumptionthat there has been actually sexual intercourse, and that that pre-sumption must stand, till it is repelled satisfactorily by evidence thatthere was not such sexual intercourse.”
5 (1947) 4S N. L. R. 2G1.
« (194S) 49 N. L. R. 442.
7 (I960) 52 N. L. R. C9.
» (1S23) Turn. L. R. at 110.
Their Lordships are of opinion that the significance of the words “ noaccess ” in section 112 of the Evidence Ordinance is not fully conveyed byassigning a precise verbal definition to the word “ access ” itself. They. are satisfied that a test which considers merely the bare geographicalpossibility of the parties reaching each other during the relevant periodmust be rejected completely. Taken at its face value such a test couldhardly ever exempt a husband from the onus of paternitj' and could workreal injustice in many cases. Again, their Lordships are of opinion that“ no access ” would be established in any case in which, on the evidenceavailable, it was right to conclude that at no time during the period had. there been “ personal access ” of husband to wife in the sense given tothat phrase in the passage from Lord Eldon’s judgment which has beenquoted above. On the other hand, if the evidence in a case did disclosethat at any time during the period there had been such personal access—and it must be remembered that the section may often have to be appliedwhen there lias been no separation between the married pair—then “ noaccess ” would not be established unless the presumption that sexualintercourse had in fact resulted were rebutted by evidence that displacedthe jii'esumpt-ion. It is only necessary to add that, though the presump-tion arising from personal access is, as has been said, a rebuttable one,it is in the nature of things that nothing less than cogent evidence ought tobe relied on for this purpose.
Appljdng this test to the facts as found by the Magistrate it is clearthat the absence of such personal contact as would give rise to thepresumption of sexual intercourse was established and his orderconsequently justified. His finding would equally be unassailable ifnon-access required positive proof of no actual sexual intercourse.
Their Lordships do not consider that- this decision in any way conflictswith the judgment of the Board in Karapaya v. Mayandi , where thefinding that the appellants had failed to establish non-access at thematerial date, December, 1911, could be justified on cither view of themeaning of the word access. It is true that in delivering the judgmentof the Board, Sir George Lowndes said : “It was suggested by counselfor the appellants that ‘ access ’ in the section implied actual cohabita-tion, and a case from the Madras reports was cited in support of thiscontention. Notlnng seems to turn upon the nature of the access inthe present case, but their Lordships are satisfied that the word meansno more than opportunity of intercourse.”
This shows that their expression .of opinion was purely obiter.Moreover the judgment does not define precisely what is meant by“ opportunity of intercourse ” and certainly lends no support to theappellant’s test of bare geographical possibility.
As was said in the judgment of the Board in the recent case of Allesv. Alles 2“ The issue remains whether on the whole of the evidence
made available it can safely be concluded that there was no access at atime when the child could have been conceived.” ' .
(1950) 51 -V. L. It. 416 at 41S.
i (1934) A. I. R. (P. C.) 49.