142-NLR-NLR-V-15-KALO-NONA-v.-SILVA.pdf
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1912.
Present: Pereira J.KALO NONA v. SILVA.828—P. 0. Negombo, 18,015.
Maintenance — Applicationby married womanfor maintenanceof
illegitimate child — Proof of non-access between the spouses —Evidence Ordinance, s. 112.
The applicant,amarried woman,claimed maintenance forher
illegitimate childfrom the respondent,with whom she alleged – she
had lived_in adultery.
It was proved that during the last four years the applicant’shusband nevercame to theapplicant’shouse, which is twentyor
twenty-five miles from the place where he lived.. .
The • Magistrate held that in all human probability the defendantwas the fatherofthe child,but he dismissed the application onthe
ground that itwasnot proved thataccessbetween applicantand
her husband was impossible.
Held, that consistentlywith thefacts sworn to access was
impossible. The application for maintenance, was allowed.
“ It is clear that under the English law the presumption oflegitimacy mayberebutted,not onlyby proof of non-access,but
by proof of such circumstances as may have the effect of raising apresumption that the child is not the issue of the husband, and I donot think that the expression ' non-access ' or rather ' no access ’in our law should be given an artificial interpretation if the lattermeans mentionedabove ofrebuttingthe presumption referredto
would thereby be effectually excluded. ”
Sopi Nona v. Marsiyan 1 explained.
» (1903) 6 N. L. B. 379.
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mHE foots are set out in the judgment.tgjg,
Kalo Nona
Savundranayagam, for the applicant, appellant.o.8Qm-
JayatUeke, for the defendant, * respondent.
Cur. ado. unit.
November 25, 1912. Pereira J.—
This is a proceeding under “ The Maintenance Ordinance, 1880/!
The applicant, a married woman, seeks, an order as against therespondent, with whom she says she has lived in adultery, for themaintenance of his illegitimate child by her. The respondentdenies paternity, and the question is whether there is sufficientevidence to rebut the presumption that the applicant’s husband is-the father of the child. The Magistrate finds on the evidence—and1 agree with him—that “ in all human probability the defendant is-the father of the child but he thinks that he is concluded by thedecision in the case of Sopi Nona v. Marsiyan/ in which it washeld by a Bench of three Judges that (to put it shortly) the expression“ no access ” in section 112 of the Evidence Ordinance meant thataccess between the spouses was impossible. 1 have expressed myown personal view of this decision; or, in fact, of th.e earlier decisionsthat led up to it, in'my work on the Laws of Ceylon, voL II., p. 45.
It is clear that under the English law the presumption of legitimacymay be rebutted, not only by proof of non-access, but by proof ofsuch circumstances as may have the effect of raising a presumptionthat the child is not the issue of the husband, and I do not thinkthat the expression “ non-access ” or rather “ no access ” in ourlaw should be given an artificial interpretation, if the latter means-mentioned above of rebutting the presumption referred to would,thereby be effectually excluded. The special meaning given to“ non-access ” by Lord Bedesdale in the Banbury Peerage caseis obviously a meaning to be given to the expression as contra-distinguished from the language in which the alternative methodgiven above of rebutting the presumption of legitimacy is expressed.
Our law speaks only of non-access, and the Indian Courts have held!that that means no more than the " non-existence of opportunities* #for sexual intercourse, and that it may be proved by means of suchlegal evidence as is admissible in every other case in which- it is*necessary to prove a physical fact.” However, the decision in SopiNona 17. Marsiyan 1 is a binding authority, but it must be considered,as it stands explained and possibly modified by a later decision bya Bench of three Judges, namely, the decision in the case of Robot v,
De SUva.* There, Middleton J., who had taken part in the decisionin the older case, explained his meaning, and the explanation, Ithink, would best be given in his own words. – He said: ” I wouldwish to say that in my judgment in Sopi Nona v. Marsiyan 1 I do*not think I have gone further than holding that the proof that isi {1903) 6 N. L. R. 97S.* (1907) 10 N. h. R. 140.
1912.
JPhbbiba J.
Kalo NonaV. Silva
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required to rebut the legitimacy of a child bom under the conditionsin section 112 of the Evidence Ordinance is that of no access orimpotenoy. So long as there is a reasonable possibility of access,the rebuttal will not be effected, and therefore it is necessary forany one seeking to support the rebuttal to establish that there wasnot a possibility of access. In my view the proof must depend onthe circumstances of the case, and they might be such that, althoughthe spouses were living in the same town or village, it iB conceivablethere might not be, according to the particular facts of the case,
a possibility of access The word ‘ access ’ I should.
construe as meaning an opportunity for sexual connection
It is necessary to show that it was reasonably impossible under thecircumstances that the man had an opportunity of sexual connectionwith the mother. This is no more than proving affirmatively thatthe man had no access to the mother. ” Hutchinson C.J. observedas follows: “ It was stated in argument that it (the ruling in the caseof Sopi Nona v. Marsiyan l) has been misunderstood, and that someMagistrates have, on the supposed authority of that ease, refusedto admit any evidence to prove the fact of non-access by the husband
in such cases It seems to me that the word ‘ impossible ’
is liable to be misunderstood, and the language of Lord Bedesdalereferred to in the previous case is no authority for the constructionwhich Bonser C.J. placed on section 112 of the Ordinance. It isbetter to adhere to the words of section 112, which are plain enough:
* unless it cm be shown that he had no access. ’‘ Shown, ’ of
course, means proved by evidence I think that all that
the Court meant in the case of Sopi Nona v. Marsiyan1 was that it(access) must be shown to have been impossible consistently withthe facts proved. It must be proved affirmatively, and not merelyinferred as a probability, that the man had no access. ”
Now, in the present case, the applicant affirms that for thelast five years her husband had not lived with her, and that therespondent was the only man who came to her house. Isohamy,the applicant’s mother, says that the applicant's husband left hersome years ago; that he brought her to her house for her confinementand deserted her; and that during the last four years he never cameto the applicant’s house, which is twenty or twenty-five miles fromKehallela, where he lives. I may say, in the language of Hutchin-son C.J., that, consistently with the facts sworn to by these twowitnesses, access was impossible; that is to say, if these facts aretrue, there could possibly have been no access.
In view of the finding arrived at by the Magistrate, in which, asobserved already, 1 concur, I set aside the order appealed from, anddirect that the respondent do pay the applicant Bs. 2.50 a monthfor the maintenance of the child. I allow no costs of this appeal.
Set aside, .
i (1903) 6 N. L. R. 378.