Kalo Nona V. Silva

Present: Pereira J.

KALO NONA v. SILVA.

828-P. C. Negombo, 18,015.

Maintenance - Application by married woman for maintenance of illegitimate child- Proof of non-access between the spouses- Evidence Ordinance, s. 112.

The applicant, a married woman, claimed maintenance for her illegitimate child from the respondent, with whom she alleged she had lived in adultery.

It was proved that during the last four years the applicant's husband never came to the applicant's house, which is twenty or twenty-five miles from the place where he lived.

The Magistrate held that in all human probability the defendant was the father of the child, but he dismissed the application on the ground that it was not proved that access between applicant and her husband was impossible.

Held, that consistently with the facts sworn to access was impossible. The application for maintenance was allowed.

"It is clear that under the English law the presumption of legitimacy may be rebutted, not only by proof of non-access, but by proof of such circumstances as may have the effect of raising a presumption that the child is not the issue of the husband, and I do not think that the expression ' non-access ' or rather ' no access' in our law should be given an artificial interpretation if the latter means mentioned above of rebutting the presumption referred to would thereby be effectually excluded. "

Sopi Nona v. Marsiyan1 [ 1(1903) 6 N. L. R. 379.] explained.

THE facts are set out in the judgment.

Savundranayagam, for the applicant, appellant.

Jayatileke, for the defendant, respondent.

Cur. adv. vult.

November 25, 1912. PEReiRa J.-

This is a proceeding under " The Maintenance Ordinance, 1889." The applicant, a married woman, seeks an order as against the respondent, with whom she says she has lived in adultery, for the maintenance of his illegitimate child by her. The respondent denies paternity, and the question is whether there is sufficient evidence to rebut the presumption that the applicant's husband is the father of the child. The Magistrate finds on the evidence-and I agree with him-that " in all human probability the defendant is- the father of the child "; but he thinks that he is concluded by the decision in the case of Sopi Nona v. Marsiyan,1 in which it was held by a Bench of three Judges that (to put it shortly) the expression " no access " in section 112 of the Evidence Ordinance meant that access between the spouses was impossible. I have expressed my own personal view of this decision; or, in fact, of the earlier decisions that led up to it, in my work on the Laws of Ceylon, vol. II., p. 45. It is clear that under the English law the presumption of legitimacy may be rebutted, not only by proof of non-access, but by proof of such circumstances as may have the effect of raising a presumption that the child is not the issue of the husband, and I do not think that the expression " non-access " or rather " no access " in our law should be given an artificial. interpretation, if the latter means mentioned above of rebutting the presumption referred to would, thereby be effectually excluded. The special meaning given to " non-access " by Lord Redesdale in the Banbury Peerage case is obviously a meaning to be given to the expression as contra distinguished from the language in which the alternative method given above of rebutting the presumption of legitimacy is expressed. Our law speaks only of non-access, and the Indian Courts have held: that that means no more than the " non-existence of opportunities: for sexual intercourse, and that it may be proved by means of such legal evidence as is admissible in every other case in which it is necessary to prove a physical fact." However, the decision in Sopi Nona v. Marsiyan I [1 (1903) 6 N. L. R. 378. ] is a binding authority, but it must be considered as it stands explained and possibly modified by a later decision by a Bench of three Judges, namely

Click Here to Read the rest of this document