094-NLR-NLR-V-06-SOPI-NONA-v.-MARSIYAN.pdf
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SOPI NONA v. MARSIYAN.
P. C., Balapitiya, 23,485.
Maintenance—Evidence in support of affiliation order—Legitimacy of child hornduring subsistence. of valid marriage—Rebuttal of legitimacy-^BvideneeOrdinance, s. 1X2—Competency of husband and wife to give evidence as tosexual intercourse with each other.
If a woman seeks to charge her husband with the maintenance of herchildren bom during the continuance of their marriage, she should provea valid marriage and the birth of her children during its continuance.
To evade responsibility for such maintenance, the husband, if he admitsthe marriage, must prove that he is either impotent or that he had nopossibility of access to his wife.
The words “ no access to the mother ’’ in section 112 of the EvidenceOrdinance (No. 14 of 1895) mean impossibility of access.
Neither the husband nor the wife is a competent witness as to theirhaving or not having sexual intercourse with each other,, when thelegitimacy of the wife’s child is in question.
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N this case the accused was sued for the maintenance of his wifeand three children aged nine years, five years, and one year,
respectively. The Police Magistrate found that the accused was
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1008. liable to maintain the first two children, and, as regards the lastMay 31. child, he held, that it was not the husband’s, inasmuch as it was'proved that he visited his wife only once, a lew days after the
Beoond child's birth, but not after that, and that the wife begot,this child while living in adultery with a man named Kovis.
The mother appealed.
The appeal came on for hearing before Mr. Justioe Middleton,who directed the case to be reserved for the consideration of theFull Court as to the construction of section 112 of. the EvidenceOrdinance (No. 14 of 1895). It was argued before Layard, C.J.,Middleton, J., and Grenier, A.J., on the 18th May, 1903.
Morgan, for appellant.—Section 112 of the Evidence Act speaksof conclusive proof of the legitimacy of children born during the . ,continuance of marriage. The presumption could be rebutted bystrict proof of the impotency of the man, or the impossibility ofthe man to have had access. The English Law is different fromour law. Our law does not allow proof of circumstances to showthe moral impossibility of the man to have access, but it throwsthe burden on the person disputing the paternity to prove physicalimpossibility. Perera v. Podiaingho, 2 N. L. R. 243.
Wadsworth, for respondent.—The presumption of law can berebutted if it can be shown " that the man had no access to themother.” The words of the section are clear. The question ofimpossibility does not arise. It must only be proved that theman had in fact no access. Generally, when any law enacts thatthere must be proof that a certain thing was not done by a certainperson, it is not necessary to show that it was impossible for himto have done it. What the law requires is that, apart from thepossibility or impossibility of the act, it should be proved that theperson did not in fact do it. In the case of a person who is out-side the Island it would be quite possible for him to come to theIsland, but suffice it to prove that he did not come. In Perera-v.Podi Singho, Bonser, C.J., followed the ruling in the Banbury-Peerage Case. -In that case it was held that the presumption isrebutted “by such evidence as proves to the satisfaction of thosewho are to decide the question that such sexual intercourse did/not take place at any' time when by such intercourse the husbandcould, according to the laws of nature, be the father of the child.”This principle was followed in Morris v. Davis (5 Clark &Finnelly, 163), where Lord Redesdale is said to have given expres-sion to the dictum that non-access means impossibility of access.But even there it was held that, though the father and motherlived in the same house, the child was not the father’s. To some
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extent the English Law is different from our law. It is submittedthat proof “ that the man had no access " includes the two kindsof proof contemplated under the English Law, viz., non-access and‘ circumstances tending to show that there was no access. Our lawis not more stringent than the English Law. To interpret ourlaw to mean physical impossibility would be to give the words astrict interpretation. Withers, J., in Paviatina v. Aron (3 N. L.R. 13) held that proof of impossibility of access is not absolutelynecessary to rebut the presumption. Nor can it always bepossible to prove that there was actual physical impossibility,except perhaps in cases where a person is confined in jail, andguards are placed over him who watch every movement of his.
Cur. adv. vult.
May 81, 1903. Layard, C.J.—
/1 see no reason to depart from the ruling of Chief Justice BonBerin Perera v. Podisingho. (5 N. L. R. 243), that to bring a case of-paternity within the exception of section 112 of our. EvidenceOrdinance it must be proved either that the husband was impotent,or that it was impossible for him to have had .intercourse withhis wife at the time the child was begotten. The evidence in thiscase does not establish that at the time the third child was begottenit was physically impossible for the defendant to have had inter-course with his wife. Under our law it is not merely a presump-tion of legitimacy which is to be rebutted, but what seotion 112terms “ conclusive proof of ” legitimacy.From the evidence in
this case it appears that the third child was bom during thecontinuance of the marriage of the complainant and the defendantand that, according to our law, is conclusive proof that such childis the legitimate child of the defendant, unless it is shown that hehad no aocess to the complainant or that he was impotent. It is notpretended that he was impotent, an cl the evidence in the case isfree from conclusively establishing the non-access of the defendantto his wife, i.e., the impossibility of such access. I hold thereforethat the third child is the legitimate child of the defendant.
I desire here to point out to the Magistrate that it has beenrepeatedly held by this Court that neither the husband nor thewife is a competent witness as to the fact of their having or nothaving sexual intercourse with each other, where the7 legitimacyof the wife’s child is in question. The evidence7, which theMagistrate has recorded, of the defendant to the effect that he hadno intercourse with his wife, was clearly inadmissible and oughtnot to have been received by the Magistrate'. The evidence ofthe wife, in an application for an affiliation jorder, is only admissible
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to show who the true father was, after it has been established byindependent evidence that the child is not the child of hephusband.
Middleton, J.—
I agree with my lord that the correct view of the effect ofsection 112 of the Evidence Act on the question of the legitimacyof children born during a valid marriage is that adopted by ChiefJustice Bonser in Perera-v. Podisingho (6 N. L. R. 243). If awoman seeks to charge her husband with the maintenance of herchildren born during the continuance of their marriage, 6he wouldhave to prove a valid marriage and the birth of her childrenduring its continuance. On the other hand, if the husband admitsthe existence of a valid marriage, he must, in order to evaderesponsibility for the maintenance of his wife’s children, eitherprove that he is impotent or that he had no possibility of access tohi6 wife. He has to meet what is termed in the section conclusiveproof of legitimacy by two specified forms of rebuttal, i.e., non-access, .which has been defined by the learned authority of Lordltedesdale as impossibility of access, and impotency. By our law,therefore, a man is deemed to be the father of his wife’s children,born during the continuance of a valid marriage, unless he canprove these two rebuttals. In the case before us the husband hasnot established that there was no possibility of access on his partto his wife, and there is no suggestion of impotency, and he musttherefore be held responsible for the maintenance of his wife’sthird child to the extent of Be. 1 per month, in addition tothe sums already ordered by the Magistrate for the two elderchildren.
Grenier, A.J.—
In this case the complainant charged the defendant with havingfailed to maintain her and his three children, she being his law-ful wife. The Magistrate found upon the evidence that thedefendant was the father of two of the children; but not of thethird child. The complainant has appealed, and the questionarising for determination is one of considerable importance, anddepends upon the true construction to be placed upon section 112of our Evidence Act, Ordinance No. 14 of 1895.
In the case reported in 5 N. L. R. 243, Chief Justice Bonser drewa distinction between the English Law and our law in regard towhat constitutes proof of legitimacy, and I shall presently 6how thatthis distinction is apparent in view of the wording of section 112.
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It is not open for us where the words are plain and unambi-guous to place any interpretation on them in order to meet theexigencies of any particular case. We must construe the words in£heir ordinary sense, and give them their obvious effect.
Now, section 112 runs as follows:—"The fact that any personwas bom during the continuance of a valid marriage between hismother and any man, or within 280 days after its dissolution, themother remaining unmarried, shall be conclusive proof thatsuch person is the legitimate son of that man, unless it can be.shown that that man had no access to the mother at any timewhen such person could have been begotten, or that he wasimpotent." It will be remarked at once that the words cannotadmit of more than one meaning, and the fact that a person is bornIn lawful wedlock is conclusive proof of his legitimacy. There isno room for any presumption, as under the English Law, and thesignificance of the words " conclusive proof ’’ cannot in any waybe overlooked. A presumption may be rebutted, but where thelaw says that, given a certain state of things, there is conclusiveproof of a certain fact, unless certain other facts are proved, thatproof can only be destroyed or nullified by counter proof of an/overwhelming character establishing those other facts. Suchproof is predicated by the latter part of section 112, which says" unless it can be shown that the man had no access to the motherat any time when such person could have been begotten, or that he•was impotent.” In plain language these words mean that the•onus is entirely thrown on the husband to. prove that it wasimpossible for him to have had access at a particular time, or thathe was impotent. The words “ non-access ” have been judiciallyinterpreted by the House of Lords in the case of Morris v.Davies (Clark & FinneUy’s Reports, vol. V., p. 163), followingupon the judgment of Lord Redesdale in the Banbury Case, tomean impossibility of access. Applying this interpretation to thewords of section 112, it would be for the husband to prove that hewas confined in a lunatic asylum, or was beyond seas, or was placedin circumstances of such physical restraint as to have rendered itimpossible for him to have had access to his wife, as the law alwaysfavours legitimacy and not bastardy. The second ground open tothe husband is the ground of impotence. Here too the onuswould be on him.
According to English Law, however, the presumption of thebirth of a child in wedlock may be rebutted both by direct andpresumptive evidence. To use the language of Lord Redesdale: “ Inthe. case of a husband and wife living in such habits of intercourseas that the husband may be the father of the child, as the fact that
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the ohild is the child of A, is only presumption. It may <he rebut-'ted by ciroumstances, and the conclusion must be drawn from allthe circumstances taken together.” It follows from this, therefore,that although it may be proved in England that the husband andwife were living together in the same house, the birth of a child in1wedlock may be rebutted both by direct and eipeumstantialevidence, which Would include the conduct , of the parties. Suchevidence, however, will' not avail the husband, in similar circum-stances, in this country, because access cannot be said to beimpossible.
As I have pointed out, our Evidence Act expressly legislated thatthe fact that a child was bom in wedlock was conclusive proof ofits legitimacy, and.that that proof could only be destroyed in thetwo ways I have already indicated. As far as I can see, there is noproof in this case that it was impossible for the defendant to havehad accesB to bis wife at any time when the third child could havebeen begotten, or that he was impotent, and I therefore hold onthe question of paternity that the child was bora in wedlock, andthat the defendant is liable for its maintenance.
Later on, the case went before Mr. Justice Middleton for hisdecision on the other point raised in appeal, i.e., whether there wasevidence to justify the Magistrate in finding that the complainantwas living in adultery with the man Kovis.
Middleton, J.—.
I have carefully gfyie through the evidence again, and I am notprepared to say that the Magistrate, who is a Sinhalese gentleman,was wrong in coming to the conclusion, on the evidence he heard,that the complainant was living m adultery with the nian Kovis.I therefore dismiss the complainant’s appeal on this ground, which,as a matter of fact, is not specifically raised in the petition of appeal,and she therefore fails to obtain an order for her personal main-tenance.
The result of the appeal is that the respondent husband willhave to pay in addition Be. 1 per month for the maintenance ofhis youngest child.