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PEREBA v. PODY SINHO.P. C., Colombo, 7,481.
November l $
Maintenance—Ordinance No. 19 of 1889—Order under e. 8—Appeal therefrom—
Married woman—Presumption of paternity—Evidence Ordinance, t. Hit—a Moral impossibility of access.
Bonsbb, C.J.—Under section 3 of the Ordinance No. 19 of 1889, theMagistrate maymake twoorders, an orderfor maintenanceor an order
dismissing theapplication.In either case,the order maybe appealed
The decision in Fernando v. Iampemmal, and Selestina v. Perera,2 C. L. R. 88, is not an authority to be followed on the above point.
To bring a case of paternity within the exception of section 112 ofthe Evidence Ordinance, it must be proved either that the hnsband waaimpotent, or that it was impossible for him to have had intercourse withhis wife at the time the child was begotten.
Evidence ofthe moralimpossibility ofaccess on thepart of the
spouses is not admissible.
Pavistina v. Aron, 3 N. L. R. 13, questioned.
Podina e. Sada, 4 N. L. R. 109, to be read by the light of the presentcase.
HE facts of the case and arguments of counsel appear in thefollowing judgment of the Chief Justice.
Bawa, for complainant, appellant.
■Jayawardene, for accused, respondent.
19th November, 1901. Bonsbb, C.J.—*
This case raises two interesting questions, one, as to the con-struction of Ordinance No. 19 of 1889, and the other as to the con-struction of section 112 of the Evidence Ordinance.
The appeal is by the mother of an illegitimate child, who claimedfrom the respondent maintenance for that child, as being itsfather. The Police Magistrate dismissed the application on theground that she was a married woman, and that there was not• sufficient evidence to rebut the presumption of paternity estab-lished by section 112 of the Evidence Ordinance.
When the appeal was called on, counsel for the respondent tookthe objection that no appeal lay, relying on a case reported in2 C. L. R. 88. Section 17 of Ordinance No. 19 of 1889 providesthat “ any person who shall be dissatisfied with any order made“ by a Police Magistrate under section 3 or section 14 may appeal“ to the Supreme Court, and every such appeal shall be subject to“ the provisions of section 407 of the Criminal Procedure Code,“ 1888.” Section 3 provides that ” if any person having sufficient
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“ means neglects or refuses to maintain his wife, or his legitimate
Wovember lQ. •* or illegitimate ohild unable to maintain itself, the PoliceBonshb,C.J. ” Magistrate may, on proof of such neglect of refusal, order such" person to make a monthly allowance for the maintenance of•' such child at such monthly rate, not exceeding fifty rupees, as"‘the Magistrate thinks fit, and to pay the same to such person“ as the Magistrate may from time to time direct. Such allowance‘ ‘ shall be payable from the date of the order. ’ ’ And section • 14provides that " upon application being made for such order or“ warrant as aforesaid, the Magistrate shall commence the“ inquiry by examining the applicant on oath or affirmation, .andsuch examination shall be duly recorded. If after such" examination there is in the judgment of the Magistrate nosufficient ground for proceeding, he may make order refusing to“ issue a summons.”
The respondent’s counsel argued that there was no order undersection 3, because the only order contemplated under that sectionwas an order for maintenance. The result of that would be that,although the applicant might appeal to this Court if the Magistrate.refused to issue summons, yet if the Magistrate issued a summons,heard the case, and decided against her, there’ would be no appeal,although if he decided in her favour there would be an appeal.Now, I think that would be an extraordinary provision for anyLegislature to enact. No reason could be given for it. Thedecision of the Magistrate is to be unappealable if it is one againstthe applicant, but it is appealable if it is.in her favour. If, forinstance, he decides that the applicant and respondent were nevermarried, and, therefore, she had no claim on him for maintenance,that decision is to be final. She is to have ho opportunity ofshowing that the decision is wrong; but, if he decided that theywere married, and that the respondent is bound to maintain her,the respondent is to have the opportunity of showing that thedecision is wrong.
It seems to me that under section 3 the Magistrate may maketwo orders. He may either make an order for maintenance or anorder dismissing the application. It seems to me that in eithercase there is an order under section 3 which may be appealedfrom.
But, as I said before, the respondent relied upon what he allegedwas the decision of a Full Court, which would be binding on me,holding that no appeal lay in a case like the present. But, onexamination of this case, it will be seen that it is of noauthority. What happened was this. The late Chief Justiceand Mr. Justice Lawrie sat together to hear the appeal. They
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•were unable to agree upon the admissibility of the appeal, and, 1*01.instead of the case being referred to a Full Court for argument November 19.and decision, counsel on both sides agreed to leave the matter to Bonser, C.J.the arbitrament of the third judge. The third judge, after readingthe case, but without hearing any argument, expressed theopinion that an appeal did not lie. It is quite evident that thatexpression of opinion of the third judge could have no bindingeffect on the parties unless they’ had agreed to accept it. Thatbeing so, it is'of no use citing it as an authority, and I cannotunderstand why any reporter should have thought fit to report it.
It seems to me that the judgment which Mr. Justice Lawrie wasprepared to give, and which will be found at page 89 of thereport, was the better opinion. I am quite prepared to adoptevery word of that judgment, for I think that it states conciselyand clearly the law on the point.
Then, we come to the other question raised in the case. ThePolice Magistrate was of opinion that the circumstances of thecase were insufficient to rebut what he calls the presumptionraised by section 112 of the Evidence Ordinance. The appellantrelied upon a judgment of Withers, J. (3 N. L. R. 13), andargued that inasmuch as both parties were living in adulteryit was in the highest degree improbable—so improbable as toamount to a moral impossibility—that the husband and wifeshould have had sexual intercourse with one another. Section112 of our Evidence Ordinance is as follows: “ The fact that any“person was bom during the continuance of a valid marriage -“ between his mother and any man, or within two hundred and“ eighty days after its dissolution, the mother remaining unmarried,
“ shall be conclusive proof that such person is the legitimate son of“ that man, unless it can be shown that that man had no access to“ the mother at any time when such person could have been“ begotten, or that he was impotent.”
Now, in the case before Withers, J., it seems to have beenassumed that the law as enacted by that section is identical withthe law prevailing in England. But I have come to the conclusionthat that is not so. According to English Law, the legitimacy ofa child born id wedlock is mere presumption, which may berebutted by any evidence showing circumstances from which itmay be inferred that the husband and wife had not sexualintercourse at the time the child could have been begotten. In theBanbury Peerage Cane, Lord Redesdale said: “ The.presumption of“ the birth of a child in wedloek may be rebutted both by direct“and presumptive evidence—first, by direct evidence, as impotency“ and non-access, i.e., impossibility of access; secondly, by all the
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" circumstances having the effect of raising the presumption that
November 19. •• the child was not the issue of the husband.” Now, it is remark-Bonser, C.J. able that the first part of the definition of the evidence admissibleto rebut the presumption is almost word for word the same as thewords of our Ordinance. The two things that our Ordinanceallows to be shown are non-access and impotency. LordRedesdale defines what non-access means, i.e., impossibility ofaccess. Our Ordinance does not go on to say that the secondclass of evidence spoken by Lord Redesdale is admissible,viz., evidence to show what I may call a moral impossibility ofaccess. It seems to me that our Ordinance is designedly drawnso as to exclude a certain class of evidence which would beadmissible according to English Law. It may further be observedthat it is not a mere presumption of legitimacy which is to berebutted, but what our Ordinance terms ” conclusive proof ” oflegitimacy. It seems to me, therefore, that you must, before youcan bring the case within the exception, establish one of twothings: either that the husband was impotent, or that it wasimpossible for him to have had intercourse with his wife at thetime the child was begotten. For instance, that he was at a placeso distant that it was physically impossible for him to have hadintercourse with his wife, or that he was confined in jail, in. alunatic asylum, or something of that kind. It seems to me. thatit is not open to parties if they are living in the same place wherethey may have opportunities of sexual intercourse to discuss thequestion whether it was likely that they would have had sexualintercourse. Therefore, the appeal fails and must be dismissed.
My attention was called to the case of Podina v. Sada decidedby me in 1900.(4. N. L. R. 109.) If there is anything in that
case inconsistent with what I have said to-day, it must be treatedas over-ruled to that extent.
PERERA v. PODY SINHO