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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Renton.
WICKREMENAYARE et al. v. PEBERA et al.
D. C., Kandy, 2,191.
Adulterine bastards—Children bom ex prohibito concubitu or damnatocoitu—Bightto inherit mother’sproperty—Roman-DutchLava—
Non-access—Evidence of husband.
A husband is a competent witness to prove non-access.
Under the Roman-Dutch Law adulterine bastards, inasmuch asthey were born ex prohibito concubitu, were debarred from inherit-ing the property of their mother.
Adultery being no longer an offence, such persons cannot nowbe said to be born ex prohibito concubitu. or ex damnato coitu, andare therefore not prevented from taking by inheritance from theirmother.'
PPEAL from & judgment of the District Judge of Kandy,(F. R. Dias, Esq.). The facts are fully set out in the follow-
ing judgment of Middleton J- on a previous appeal (October 11,1907): —
“ The question in this case is whether the adulterine offspring ofa deceased woman are entitled to inherit their mother’s propertywith the legitimate issue. It has apparently been admitted by theproctor for the respondents to this appeal that they were, in fact,
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1998, the issue of the adulterous oonBortment of their mother and a man.fteM 29. other than her husband. This is an admission against the interests" of the respondents, who are minors, which the Court would not allowto be made on their behalf, if upon that admission it found itselfbound to decide against their claims. The children in question areadmittedly the offspring of low-country Sinhalese and not Kandyans.
“ The learned District Judge has held in favour of the respondents’olaim on grounds which he has extracted from the judgments ofmyself and De Sampayo A.P.J. in Karonchihamy v. Angohamy,1The authorities on the question are Vanderlinden (1, X., 3, p. 164, ofHenry’8 translation), who says that illegitimate children succeed tothe inheritance of their mother ab intestato, as the mother makes nobastards. Grotius (2, 27 and 28, p. 190, of Maasdorp's translation,Book II., chapter XXVII., section 28) says: ‘ In reference to themother, illegitimate children are in the same relation as legitimate,unless, indeed, they are sprung ex prohibito concubitu, in which case.they and their descendants cannot inherit ab intestato.' Van derKeesel (Book II., chapter VII., section 345, Lorenz’s translation)says: ‘ In Dordrecht under a particular law and in South Hollandadulterine and incestuous children also succeed to the mother.'Section 40 of Ordinance No. 15 of 1876 makes the rules of the Roman-Dutch Law as it prevailed in North Holland to govern casus omissi.Van Leeuwen, in the Censura Forensus, Part I., Book I., chapter III.,section 10, says: ‘Ex damnato vero coitu nati sunt adulterini etincestuo8i qui neque patri neque matri eorumque agnatis aut cognatissuccedere possunt nisi quoad alimenta necessaria. The pre-
ceding section 8, as translated by Schneider, p. 37, shows thatthe term ‘ illegitimati ’ embraced both naturales spurii and thoseex damnato coitu nati, the two former having the right of inherit-ance from their mother, but not the latter. Voet (38, 17, 9) says:
‘nostris tamen et plurium aliorum moribus its progeniti adulterinisaccensendi sunt, et ob id ne matri quidem ab intestato aeredes essepossunt.’ I gather from Voet that there. was some doubt asto whether bastards, naturales, or spurii could inherit from theirmother according to the opinion of some writers.
“ I am not aware that the Ceylon Law or Sinhalese custom recog-nize any difference between incestuous and adulterine bastards andbastards not so procreated, but the English Law gives no right of, inheritance from the mother to any bastard. It seems unreasonableand inequitable to apply the doctrine of the Canon Law to the caseof Sinhalese.
“ Van Leeuwen (Vol. I., p. 51, of Kotze’s translation) says:* children procreated in adultery cannot be legitimated, inasmuchas according to the ecclesiastical laws there can be no marriage withthe woman with whom we have formerly lived in adultery.’
» (1904) 8 N. L. R. l.
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“ The Full Court has held in Karonchihamy v. Angohamy (ubisupra) that it is not illegal in Ceylon for a man who has livedin adultery with a woman during the liftetime of his wife to marrysuch woman after the death of his wife. Section 22 of OrdinanceNo. 2 of 1895, however, still enforces the principle of the Roman-Dutch Law that children procreated in adultery cannot be legiti-mated. But section 37 of Ordinance No. 15 of 1876 lays it down thatillegitimate children inherit the property of their intestate mother,but not that of their father or that of the relatives of their mother.
“ The word * illegitimate ’ in its full significance would includeadulterine bastards. Under the Roman-Dutch Law adultery wasa criminal offence, and the offspring of adultery or incest weretermed ‘ children ex damnato coitu,’ owing to the influence of theCanon Law upon the prevailing Dutch Civil Law. In Ceylon,notwithstanding the Political Ordinance of 1580, adultery is not acriminal offence, and no caBe has been cited to us showing that theCourts have recognized either the incapacity of adulterine bastardsto inherit from their mother or the converse. The consequentialeffects of the Full Court decision in Karonchihamy v. Angohamy(ubi supra) would be that children bom of the parents before themarriage would not be made legitimate by the marriage owing to theeffect of section 22 of Ordinance No. 2 of 1895, but would still beillegitimate.
“ The law for recognizing the marriage does away with the eccle-siastical ban of damnatus, but still refuses them specially the rightsof legitimate children to inherit from their father. Why, therefore,should not the offspring have the status of ordinary illegitimatechildren, and inherit from their mother on the principle that amother makes no bastards?
“ It seems to me that there is nothing to militate against such aconclusion, except the effete principle of the old Roman-DutchEcclesiastico Civil Law, which enacted that adultery was a crimeand that the sins of the parents should be visited on the innocentoffspring of it. . I do not wish to be supposed to be supporting thetheory that adultery is no moral offence, but merely to enunciatewhat I deem to be a plain principle of equitable right founded onfair reasoning.
“ I am afraid, however, that Roman-Dutch Law, which must beheld to apply to this case, is too clear to be disregarded. With con-siderable reluctance, therefore, I feel bound to hold that if thesepetitioners are adulterine offspring, they are not entitled to inherittheir mother’s property with the legitimate issue. . I think, therefore,that the judgment of the District Judge must be set aside, and thecase sent back far the trial of the issue whether these children areillegitimate or not, as proposed by my Lord. The respondentsshould pay the costs of the appeal, the costs in the Court below to
abide the Judge’s decision.”
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1909. The case having gone back, the District Judge after hearingJune 99. evidence made the following order (February 27, 1908): —
“ The only issue before the Court, as directed by the SupremeCourt, is whether or not the two minor children of the intestate whoare now petitioning for a judicial settlement are or are not illegiti-mate, that is to say, whether they were the children of her lawfulhusband, the administrator, or not.
“ On the evidence that has been led there can be no doubt on thatpoint, namely, that they are not his children, but were born to JohnDias Wickremenayake in adultery during the subsistence of hermarriage with the administrator.
“ Under the circumstances, and in view of the law as enunciatedby the Supreme Court in this case, 1 find that the petitioners are notentitled to inherit any of their mother’s property with her legitimatechildren.
I therefore dismiss their petition of January 26, 1906, with costs,to be paid by their father and next friend personally.
The petitioners appealed.
Van Langenberg, for the appellants.
Sampayo, K.C., for the respondents.
Cur. adv. vult.
June 29, 1908. Hutchinson C.J.—
This appeal raises a question of fact, and also a question of law,which is not quite covered by authority. The question of fact iswhether the two infant petitioners are the legitimate or the illegiti-mate children of their mother, the deceased intestate, whose estateis being administered. There is an affidavit by John DiasWickremenayake, the petitioners’ next friend, deposing that theintestate was his wife (which, however, admittedly is not the fact),and lived with him as such from 1887 until her death, having longpreviouly separated from her husband (who is the administrator ofher estate); that during her cohabitation with him she gave birthto the petitioners, and that he is their father. Her father deposedthat in 1882, in consequence of her husband’s ill-treatment of her,she went to live with him at Gampola, and lived with him from 1882to 1887, and that he maintained her, and that her husband nevercame to see .her during that time, and did not contribute towardsher maintenance; and that in 1887 she went and lived with J. D.Wickremenayake, and lived with him until she died. Her husbanddeposed that in 1882 her father removed her from Kotte, wherethey were living, to Gampola; that after that they never livedtogether, and in fact he never saw her till her death; that thepetitioners were not his children; that he never went in search ofhis wife, or made any attempt to get her back.
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Upon this evidence the District Judge thought that there could 1008.be no doubt that the petitioners were not the children of the husband, Jnn»20.but were born to J. D. Wiokremenayake in adultery. I think Hutchinsonthat was a right conclusion. The appellants’ counsel has suggested C J-that the husband’s evidence ought not to admitted in such a caseto prove that he had no access to his wife; and there is a dictum ofLayard C.J. in 6 N. L. R. 381 to that effect, an opinion upon which,it is said, Magistrates have acted in oases of application against ahusband for maintenance of a child. Section 112 of the EvidenceOrdinance makes the fact of a child having been born during thecontinuance of the marriage conclusive proof that it is the legitimatechild of the husband, unless it can be shown that he had no access tothe mother at any time when the child could have been begotten.
Section 120 enacts that in all civil proceedings the husband or wife•of any party to the suit shall be competent witnesses. The husbandis therefore a competent witness for the purpose of proving that hehad no access. Suppose it were proved that the wife had beenJiving continuously in Colombo, and living with another manduring the whole of the twelve months before the child’s birth, andthe husband was called as a witness to prove that during the wholeof that time he had been living in England. His evidence, accordingto the view which has been urged upon us, would be inadmissible;but the law and reason alike declare that it is admissible. Possiblyall that Layard C.J. meant was that it is not enough for the husbandso swear .that he had no connection with his wife, if it is possiblethat he had, as it would be,, fop example, if they were living in thesame village.
The remaining question is whether the woman’s illegitimatechildren born in adultery are entitled to inherit her estate. Themarriage was in 1870, so that section 37 of the Ordinance No. 15 of1876 does not apply. Neither does section 40 apply; that sectionmakes the Roman-Dutch Law as it prevailed in North Hollandapplicable, “ if the present Ordinance is silent ”; but by section 24that does not apply to this case, because section 40 only applieswhere the intestate, dies after the Proclamation of the Ordinanceand is then unmarried, which was not the case here. So that wehave to decide the question according to the law of thi6 Colony asif the Ordinance had not been passed.
When the case was before this Court on a previous appeal, Middle-ton J. considered this question on the assumption, which was notthen proved, that the children were illegitimate. He expressed anopinion that by the Roman-Dutch Law illegitimate children bornin adultery are not entitled to inherit their mother’s property withthe legitimate issue. He gives the authorities in detail, and I neednot go through them again. In the argument before us referencewas also made to Grotius, 2, 18, 7; 1, 12, 2-4; and Maasdorp’s Lawof Persons, 8, 108. The rule which I gather from the authorities
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IMS.is that childrensprang ex prohibito concubitu are debarred from
, ■inheriting. Andprohibitus concubitus seemsto meanthe same
'otcbonsow thing as damnatus coitus, viz.,. a concubitus,which isan offence
0,J‘ .against .the law. And as the concubitus of aman whois not her
husband with a woman who has a husband living was such an offence,and as incest was also such an offence, it followed that children bomin adultery or incest could not inherit. But now that adultery is nolonger an offence, it is not prohibitus in any other sense than theliving together of an unmarried man with an unmarried woman isprohibitus. I think, .therefore" that children bom in adultery areno.t now bom ex prohibito concubitu, and that they have thestatus simply of ordinary illegitimate children, and can inherit theirmother’s estate with her legitimate children. I would allow theappeal, and declare that the petitioners are entitled to share in theestate of their mother Jane Perera, together with her legitimatechildren, and I would remit the case to the District Court to disposeof on that footing. I think the costs of this appeal should be paidout of the estate.
Wood Benton J.—
I agree that .the appellants are proved to be adulterine bastards;and I think that the Boman-Dutch Law which made children bomex prohibito concubitu or ex damnato coitu incapable of succeeding toany share of their mother’s estate is in force in Ceylon. The ques-tion, however, remains whether, under the Boman-Dutch Law, theincapacity of adulterine bastards in the eye of the law of intestatesuccession waB an incapacity inherent in .their status, or one arisingfrom the fact that the union from which they sprang was positivelyprohibited and punished as a criminal offence^ In other words,did the Boman-Dutch jurists mean that adultery per se could createno right of intestate succession, or did they give it merely as anillustration of a prohibitus concubitus or damnatus coitus for the timebeing under their own law. With diffidence and hesitation I adoptthe later view. The words “ overwonne bastarden ” (unlawfullybegotten), which the Boman-Dutch jurists applied in distinguishingthe offspring of a prohibitus concubitus from the “ speelkinderen, ”or mere bastards, seem to point to the conclusion that is was theprohibition of the union that created the incapacity (see VanLeeuwen, Kotze's translation, I., ch. VII., ss. 3 and 7; Nathan,Common Law of 8. A.; /., p. 213, s. 379). In Ceylon adulteryunlike incest, is not a criminal offence, it is hot prohibited by law,save in the case of incestuous adultery; after the dissolution of th$marriage tie which made the relationship adulterous, the partiescan marry (Karonchihamy v. Angohamy1), although section 22 ofOrdinance No. 19 of 1907, i.e., enacting earlier legislative provisions,
1 (29<M) 8 N. L. H. 1.
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prevents them from legitimsting the children of their union by themarriage. Adultery is a moral offence, and the law discourages it.But I do not think that unless it is incestuous it is now a prohibitusconcubitus or domnatus coitus in Ceylon within .the meaning ofRoman-Dutch Law I agree to the order proposed by my Lordthe Chief Justice.
WICKREMENAYAKE et al. v. PERERA et al