059-NLR-NLR-V-74-S.-SAMARAPALA-Appellant-and-W.-MARY-Respondent.pdf
AT-I-E.S, J.—Samarapola v. Mary
203
1969Present: Alles, J.
S. SAMARAPALA, Appellant, and V. MARY, RespondentS. C. GS3jGS—M. C. Kcgalle, G93G7
Evidence Ordinance—Section J12—Child born during continuance of a valid marriage—Presumption of legitimacy—Hcbuttal—acquirement of proof beyond reasonabledoubt.
The applicant-respondent, a married woman, sued (ho defendant-appellantfor the maintenance of a child born to her 2G+ days after she had left herhusband and matrimonial homo and lived with the defendant-. Sho allegedthat the defendant was tho father of the child.
Held, that proof beyond reasonable doubt is necessary in order to rebut thopresumption of legitimacy created by Section 112 of the Kvidence Ordinancein regard to a child born during the continuance of a valid marriage. In thopresent caso “personal access” which raises tho presumption of actual,intercourse was not rebutted by cogent evidcnco.
L from a judgment of the Magistrate’s Court, Kcgalle.
M. M. Kumaral'idasimjham, for tJtc defendant-appellant.
Miss C. M. jl/. Karunaratne, for the applicant-respondent.
Ctir. adv. vull.
October 23, 19C9. Aeles, J.—
The applicant-respondent successfully obtained an order of maintenance"from the defendant-appellant, who was not her husband, in respect of- •a male child called Gunapala born to her on 12th August 19G7. Therespondent was married to one Sum'anapala on 29th May 1963 and hadtwo children by him, one of whom died and the other LakshmanAranayake being born on 10th April 1966. According to the respondentfour months after the marriage she became intimate with the defendant
204
AXLES, J.—Samarapala v. Alary
and this intimacy continued even after the birth of Lakslunan.Sumanapala was aware of this association and in 1965 he inadc a complaintto the Grama Sevaka, who advised the respondent to give up her friendshipwith the defendant. In spite, however, of the advice of the GramaSevaka, her parents and Sumanapala, the respondent continued herassociation with the defendant until she left the matrimonial home withthe defendant for his village, where they continued to live until the birthof the child. The respondent, defendant, and Sumanapala have madestatements before the Grama Sevaka on 27th November 1906 (P2, P3and 1*4) in which they all state that the date of departure fromSumanapala’s house was on the 21st of November. The respondentstated that thereafter she had no sexual intercourse with her husbandand only met him on 28th January 19G7, when the child Lakslunan washanded to him at the Kegalle Police Station. When the child Gunapalawas born she claimed maintenance from the defendant on the groundthat he was the father of the child. In the birth certificate (PI)however she did not give the defendant’s name as that of the father.
The crucial question that arises for consideration in tin's case is whetherthe presumption under Section 112 of the Evidence Act has been rebuttedthat Sumanapala could not bo the father of the child. Sumanapalain evidence stated that just before the birth of Lakshmanhe did not haveintercourse with his wife and this evidence appears to have been acceptedby the learned Magistrate as corroborative of the respondent’s versionthat her husband was not t-hc father of the child. This evidence, however,is considerably weakened by the evidence of the respondent inre-examination that before leaving Sumanapala she could not rememberwhen she last lived with Sumanapala as husband and wife and thatshe could not remember the last, time she bad sexual intercourse withSumanapala before she left. One would have imagined that since hercase was that the defendant was the father of the child and since sheadmitted that conception took place, according to her, in November 1966,she would have been more definite about the dates of her associationwith her husband. Furthermore, since Sumanapala admits that he hadintercourse with his wife even after he became aware of her intimacywith the defendant and also admitted that Lakshman was his child,his bare denial that he had no access to the respondent at thetime Gunapala M as conceived is not very convincing. It is only if it canbe established by incontrovertible evidence that the conception tookplace after 21st November 1966 can it be proved that the presumptionunder Section 112 has been rebutted.
Section 112 of the Evidence Act creates a presumption of legitimacy inregard to a child born during the continuance of a valid marriage, andits illegitimacy can only be established, if it can be proved beyondreasonable doubt that the husband had no “opportunity of intercourse’’with the M'ifc at the time the child could have been begotten. It hasnow been authoritatively held by the Privy Council that the word“access” in Section 112 means not actual intercourse but “ opportunity of
ALLES, J.—Samarapala v. Mary
205
intercourse ”—Vide Karapaya Served v. Jlaycnidi 1 followed by Sansoni J.in Andris Fonseka v. Alice Perera 2. The child Gunapala having beenborn 2G4 days after the respondent left the house the “ opportunity ofintercourse :1 was available to the husband and could only be rebuttedby convincing evidence that in fact lie had no intercourse with his wifeat the time the child was begotten. It has been submitted by Counselfor the respondent that the sworn testimony of the husband that lie hadno intercourse with his wife would be admissible, even if he had theopportunity of intercourse, provided such evidence can be established tothe satisfaction of the Court, In support she cited the case of In re KasiA mnm 3, but can it be said that the Court can be satisfied that the husbandhad no access to the wife having regard to the facts and circumstances ofthe instant case ?
In those cases in which the Courts have held that the husband hadsuccessfully rebutted the presumption under Section 112 the evidencewas of a very conclusive and cogent nature and the degree of proofestablished was that required in a criminal case—proof beyond reasonabledoubt.
In AUes v. A lies4 the Privy Council laid down the proposition that“ the issue remains whether on the whole of the evidence made availableit can safely be concluded that there was no access at a time when thechild could have been conceived ”. In that case the main issue centredround the question whether the child could have been born as a result ofa coitus that took place on the 9th August 1941, when the husband hadan opportunity of access. Reversing the judgment of (he Supreme Courtthe Privy Council held that, in the.face of a strong body of medicalevidence which established that this could not be the case and a strongfinding of fact by the District Judge, who disbelieved the wife whenshe endeavoured to maintain that the child was legitimate, the husbandhad successfully rebutted the presumption under Section 112 of theEvidence Act-
In Fonseka v. Perera (supra) Sansoni J. made the following obser-vations :—
“ The learned Magistrate carefully considered the question whetherthere was intimacy between the applicant and the defendant at thetime relevant to the application, and there can be no doubt that on theevidence before him the learned Magistrate came to the only possibleconclusion on that matter. But since the child was bom during thecontinuance of a valid marriage between the applicant and her husband,the more important question which requires consideration is whetherthe applicant has discharged the onus of rebutting the conclusivepresumption created by s. 112 of the Evidence Ordinance. Unlessthe applicant has succeeded in. doing so, the fact that she was intimatewith the defendant has no bearing on the question of paternity.”
*X. J. R. (1934) P. O. 49.1956) 57 N. h. R. 493.
> (1949) A. J. R. Madras SSJ.■ * (1950) 51 N. L. R. 416.
200
ALLES, J.—Samaropala v. Alary
Tlicrc was a conflict in the evidence as to when tJig parties separatedand the child being born during the continuance of a valid marriage,Sansoni J. held that the presumption had not been rebutted. In thepresent case the facts are much stronger, inasmuch as the wife wasliving under the same roof with her husband at the time the child couldhave been begotten.
In Kanapathipillai v. Parpalhy 1 the Privy Council held that the factswarranted a finding of no access within the meaning of Section 112.That was a case in respect of an illegitimate child born to the applicanton 24th May 1950. The applicant was married to one M about nine yearsbefore the hearing. M loft her after a few years and went to live withanother woman at a village called Annamalai some three or four milesfrom Kallar, where the applicant was living at all material times. For5 or 7 years before the hearing, the applicant and her husband hadbeen living apart and during this time three children were born to M'smistress. In August 1949, the applicant was living at Kallar whoreshe had sexual intercourse with the defendant in his house in which shewas residing with him, his wife and daughter. At this time, M wasliving with his mistress at Annamalai some 3 or 4 miles distant, but theapplicant had never seen him from the time lie left- her. Having rejectedthe bare geographical possibility of the parties visiting each other duringthe relevant period, the Privy Council hold that “ no access ” would beestablished in any case in which, on the evidence available, it was rightto conclude that at no time during the period had there been “ personalaccess ” of husband to wife. The Privy Council approved of the definitionof Lord Eldon in /lead v. Head (1S23) Turn. L. It. at p. 140 withreference to the opinion of the Judges in the Banbury Peerage case “ thatwhen there is personal access, under such circumstances that there mightbe sexual intercourse, the law raises the presumption that there has beenactual intercourse and that the presumption must stand, till it isrepelled satisfactorily bj* evidence that there was not such sexualintercourse.”
The Privy Council also gave its mind to the burden of proof when itsaid—
“ that though the presumption 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 to be relied on for this purpose.”
In my view on the facts of the present case “ personal access ” whichraises the presumption of actual intercourse has not been rubutted bycogent evidence..
Although it will be open to a trial Judge, as a Judge of fact, to acceptthe bare statement of the husband that lie had no intercourse with hiswife during the relevant period, even if lie had the opportunity of
* (105C) 57 jY. L. n. 553.
Pirera v. Gonad ait-a
201
intercourse, that- evidence must be carefully analysed in relation to thefacts and circumstances of the particular c-asc. Jn spite of such a carefulanaylsis of the facts by tlie Magistrate in 1'onseka v. Pcrera (supra) theSupreme Court held that the presumption had not been rebutted. Inthe Indian case referred to earlier the husband’s evidence was supportedby' two witnesses and the Court was satisfied that the husband had nointercourse with his wife during the relevant period. Th.c facts of thepresent ease cannot be equated to the facts established in A lies v. Allesor Kunapalhipillai v. Purpulhy and the evidence of the husband thathe had no intercourse with the respondent after April 1906 is subject totwo infirmities. Firstly' it is admitted that the husband and the wifewere living under the same roof at the relevant period and that thehusband had previously' had intercourse with his wife in spite of theknowledge of her infidelity and secondly the wife's evidence creates areasonable doubt as to whether or not intercourse did take place untilthe date when the wife left the matrimonial home. I appreciate thatsuch a finding may sometimes cause hardship to an innocent husband,but in my view the greater intcrests of the. child should prevail andevery assumption should be made in favour of the legitimacy' of the child.
In the circumstances of this case, I am of opinion it has not beenestablished bey'ond reasonable doubt that flic conclusive presumption oflegitimacy' under Section 112 has been rebutted. I would therefore setaside the order of maintenance and allow the appeal. In view howeverof the unsatisfactory nature of the evidence of tlie defendant, which hasbeen adversely' commented upon by the learned Magistrate, I woulddeprive the appellant of his costs in appeal.
Appeal alloircd.