010-NLR-NLR-V-52-KIRI-BANDA-Appellant-and-HEMASINGHE-Respondent.pdf
1950Present: Swan J.TCTRT BANDA, Appellant, and HEMASINGHE, RespondentS. C. 624—M. C. Kandy, 6,758
Evidence Ordinance—Section 112—Child horn during continuance of valid marriage—■Presumption of legitimacy—Meaning of “ access ”.
The word “ access ” in section 112 of the Evidence Ordinance is used inthe sense of “ actual intercourse ’**and not “ opportunity for intercourse **Ranasinghe v. Sirimana (1946) 47 N. L. R. 112 not followed.
PPEAXi from a judgment of the Magistrate’s Court, Kandy.
M. M. Kumarakulasingham, for defendant-appellant.
No appearance for respondent.
Cur. adv. vult.
September 10, 1950. Swan J.—
The appellant in this case was sued by the respondent for themaintenance of two illegitimate children. He denied paternity but thelearned Magistrate held against him and ordered him to pay Rs. 30 permensem for the elder child and Rs. 20 per mensem for the younger.
The respondent was married to one Abeywardene. Her evidencesupported by that of her mother, was that Abeywardene left her in themiddle of 1945 because he became aware of the fact that she was intimatewith the appellant, and that Abeywardene never came back again.Thereafter, she lived with the appellant. The first child was bom inOctober, 1946, and the second child in November, 1949.
There was other evidence which satisfied the learned Magistrate thatAbeywardene had nothing to do with the respondent after they partedcompany in the middle of 1945. He, therefore, held that the presumptionereated by Section 112 of the Evidence Ordinance was rebutted.
Air. Kumarakulasingham maintains that the presumption has notbeen rebutted by the evidence because there was opportunity for inter-course. He relies on the case of Ranasinghe v. Sirimana x in whichHoward C. J., following what he thought to be the decision of the PrivyCouncil in Karapaya Servai v. Mayandi z, held that the EuU Benchdecision in Jane Nona. v. Don Leo-3 could no longer be regarded as abinding authority. I wonder whether the learned Chief Justice wouldhave come to the conclusion if he had considered’ whether or not theinterpretation of the word “ access ” as meaning merely “ opportunityof intercourse ” in Karapaya Servai v. Mayandi was nothing more thanobiter dictum.-
In the case of Aides v. Alles 1 Wij eye war dene J. referred to Jane Nonav. Don Deo and said that as it was a decision of the Eull Bench it wasbinding. Howard C. J. in Ranasinghe v. Sirimana, stating that he
(1946) 47 N. L. R. 112.2 (1923) 25 N. L. R. 241.
A.J.R. (1934) P.C. 49.4 (1945) 46 N. L. R. 217.
was not unmindful of tlie fact that Wijeyewardene J. took that view inAlles v. Alles, still came to the conclusion that the meaning given to theword “ access ” by the Full Bench in Jane Nona v. Don Leo could nolonger be considered to be authoritative in view of the Privy Councildecision in Karapaya v. Mayandi.
In Pesona v. Baboivchi Bass J my brother Basnayake consideredRanasinghe v. Sirimana and Karapaya Servai v. Mayandi and said thatJane Nona v. Don Leo was not overruled. My learned brother heldthat the dictum in Karapaya Servai v f Mayandi was merely obiter, andalso took the view that a judgment of the Privy Council in an appeal fromsome other country is not binding on us until we adopt it ourselves.
While holding that Jane Nona v. Don Leo had not been overruled mylearned brother ventured to depart from the meaning given to the word‘ ‘ access ” by the learned judges who decided that case, and construedit to mean “ actual intercourse ” as well as “ personal access undercircumstances which raise the presumption of actual intercourse. ”
In my opinion, the meaning given to the word access in Jane Nona v.Don Leo still holds good. I say so for the very good reason that in theAlles case their Lordships of the Privy Council had before them theinterpretation of the word access by Wijewardene J. relying on JaneNbna v. Don Leo and did not say it was incorrect.2■
The Alles’ appeal was argued before Wijeyewardene -J. and Cannon J.Counsel for the appellant wife relied on the interpretation of the wordaccess as meaning no more than “ opportunity for intercourse ” givenin Karapaya Servai v Mayandi. Counsel for the respondent husbandmaintained that the dictum of the Privy Council in that case was obiterand stated that the point and meaning of the word “ access ” in Section112 of the Evidence Ordinance had been decided by the Full Bench inJane Nona v. Don Leo. Commenting on this matter Wijeyewardene J.after quoting Section 112, states: —
“ That section has been construed in Jane Nona v. Don Leo whichis a decision of the Full Bench and is binding on us. It was held inthat case that the word ‘ access ’ was used in Section 112 of theEvidence Ordinance, in the sense of ‘ actual intercourse ’ and not‘ opportunity for intercourse. ’ ”
When the Alles case went up to the Privy. Council their Lordships,therefore, had before them the interpretation given by our Courts to theword “ access in Section 112. If that meaning was wrong I amcertain the error would have been noticed and corrected. On the contraryit seems to me, from a perusal of the judgment of the Privy Council,that they accepted tbat interpretation as correct, as would appear fromthe following extract from the judgment 2 -—-
“ One thing at least is clear. In Ceylon the governing rule is containedin a statutory provision, Section 112 of the Evidence' Ordinance, whichreads as follows:—‘ The fact that any person was born during thecontinuance of a valid marriage between his mother and any man, drwithin two hundred and Ciighty days after its dissolution, the mother
2 (1950) 51 X. L. B. 416.
remaining unmarried, shall be conclusive proof that such person istfie legitimate son of that man unless it can be shown that the man had,no access to the mother at any time when such person could have beenbegotten or that he was impotent.’ Under this system the Court doesnot find itself faced directly with the question whether the‘child whosestatus is in dispute is or is not the child of his ostensible father. Thatfact is conclusively proved by the mere circumstance of the birth occurringduring the prescribed period, unless whoever denies the paternity canprove, not that the child was not Conceived of any union with the ostensi-ble father, but that that person had no aceess to the mother at a timewhen the child could have been begotten or was impotent. It is obviousthat in many cases the onus of disproving any access at a time when thechild could have been begotten must be a heavy one and it is not madethe lighter by the uncertainity that still attends much scientific knowledgeabout the inception and progress of pregnancy. But, that beingconceded, a Court that is furnished, as was the trial Court in this case,■with an abundance of expert testimony bearing upon this very issue asto. the dates within which Joseph Richard could have been begottenis faced with an issue of fact that is not incapable of being resolvedand, though it must properly require to be well satisfied by the evidenceif it is to conclude that such access as did take place did not take placeat any time when conception was possible, it is not at liberty to rejectan affirmative conclusion in deference to the general uncertainty thatpervades the subject or to the existence of some merely theoretical doubtas to the unpredictable achievements of nature. The issue remainswhether on the whole of the evidence made available it can safely beconcluded that there was no access at a time when the child could havebeen conceived. ”
In view of this I think one could safely say that the decision ofJane Nona v. Don Deo is still binding.
In the result the appeal fails and should be dismissed. I should add,however, that even if “ access ” meant “ opportunity for intercourse ”the evidence in this case justifies the conclusion that there was no suchopportunity.
Appeal dismissed.
1 (1048) 49 X. L. It. 442.