SOPI NONA v. MARSIYAN.

SOPI NONA v. MARSIYAN.

P. C, Balapitiya, 23,485.

Maintenance-Evidence in support of affiliation order-Legitimacy of child born during subsistence of valid marriage-Rebuttal of legitimacy-'Evidence Ordinance, s. 112-Competency of husband and wife to give evidence as to sexual intercourse with each other.

If a woman seeks to charge her husband with the maintenance of her children born during the continuance of their marriage, she should prove a valid marriage and the birth of her children during its continuance.

To evade responsibility for such maintenance, the husband, if he admits the marriage, must prove that he is either impotent or that he had no possibility of access to his wife.

The words " no access to the mother " in section 112 of the Evidence Ordinance (No. 14 of 1895) mean impossibility of access.

Neither the husband nor the wife is a competent witness as to their having or not having sexual intercourse with each other,, when the legitimacy of the wife's child is in question.

IN this case the accused was sued for the maintenance of his wife and three children aged nine years, five years, and one year, respectively. The Police Magistrate found that the accused was

liable to maintain the first two children, and, as regards the last child, he held that it was not the husband's, inasmuch as it was proved that he visited his wife only once, a few days after the second 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. Justice Middleton, who directed the case to be reserved for the consideration of the Pull Court as to the construction of section 112 of the Evidence Ordinance (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 speaks of conclusive proof of the legitimacy of children born during the continuance of marriage. The presumption could be rebutted by strict proof of the impotency of the man, or the impossibility of the man to have had access. The English Law is different from our law. Our law does not allow proof of circumstances to show the moral impossibility of the man to have access, but it throws the burden on the person disputing the paternity to prove physical impossibility. Perera v. Podisingho, 2 N. L. R. 243.

Wadsworth, for respondent.-The presumption of law can be rebutted if it can be shown " that the man had no access to the mother." The words of the section are clear. The question of impossibility does not arise. It must only be proved that the man had in fact no access. Generally, when any law enacts that there must be proof that a certain thing was not done by a certain person, it is not necessary to show that it was impossible for him to have done it. What the law requires is that, apart from the possibility or impossibility of the act, it should be proved that the person did not in fact do it. In the case of a person who is outside the Island it would be quite possible for him to come to the Island, 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 is rebutted " by such evidence as proves to the satisfaction of those who are to decide the question that such sexual intercourse did not take place at any time when by such intercourse the husband could, 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 expression to the dictum that non-access means impossibility of access. But even there it was held that, though the father and mother lived in the same house, the child was not the father's. To some

extent the English Law is different from our law.

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