Present: Wood Renton J.  1911

ANGO v. PODISINGHO.

Qu?re, whether the words " no access to the mother" in section 112 of the Evidence Ordinance mean absolute impossibility of access.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for the respondent, appellant, argued on the facts.

Wood Renton J. referred counsel to the argument before the Privy Council in Rabôt v. De Silva.1[1 (1903) 6 N. L. R. 379.]

No appearance for applicant, respondent.

July 28, 1911. Wood Renton J.-

The respondent-appellant has been ordered to pay maintenance to the applicant-respondent for a child of which she alleges that he is the father. For the sake of clearness, I will speak of the parties as the appellant and the respondent simply. The respondent is a married woman. There is some evidence showing that she has been living apart from her husband for several years. But there is nothing to prove non-access in any sense in which that term is used in law either in England or in Ceylon. One of the witnesses says that he has heard that the respondent's husband is in Anuradhapura District. Of course, that is not evidence. But there is no kind of proof that he was not in a position to have access to his wife at the time when this child must have been conceived. The point with which I am now dealing does not seem to have been brought under the notice of the learned Police Magistrate. He held on the evidence before him; and if the respondent had not been a married woman, there is evidence which would justify him in holding that the appellant was the father of the child, for whose maintenance application has been made in these proceedings. But if, as is the case, the respondent is a married woman, then section 112 of the Evidence Ordinance applies, and the child in question must be taken to be her husband's legitimate child, unless the presumption of the paternity arising from his relation as husband to the respondent is disposed of by showing that he had no access to the mother at any time when the child could have been begotten, or was impotent. As I have already

said, there is no such proof in the present case, and the presumption enacted by section 112 must, therefore, hold good in the appellant's favour.

Although it is not necessary to decide the point, it is right, I think, that I should call attention to what happened in the Privy Council in the case of Rabôt v. Silva,1 [1 (1909) A. C. 376.] in regard to the construction placed by the Supreme Court of the Colony on section 112 of the Evidence Ordinance in the cases of Perera v. Pody Sinho 2 [2 (1901) 6 N. L. R.243.] and Sopi Nona v. Marsiyan 3  [3 (1908) 6 N. L. R. 379.] and indeed, in Rabôt v. Silva1 itself at the argument in appeal in Ceylon. In the cases last mentioned the Supreme Court held in effect that evidence of moral impossibility of access on the part of spouses is not admissible under section 112. In Rabôt v. Silva,1 in the Privy Council, the appellant's counsel was about to contend that the construction which the Supreme Court of Ceylon had placed on section 112 was wrong, when he was interrupted by the respondent's counsel, Mr. Cohen, who said " I shall not contend that it is necessary to prove absolute impossibility of access. " The point appears to have been dropped, and no reference to it is made, so far as I can see, in the judgment of the Judicial Committee. If the point should arise for decision at some future time, it may be necessary to consider how far the earlier decisions of this Court, to which I have referred, ought to be followed in regard to the question of impossibility of access in view of what happened in the Privy Council in the case of Rabôt v. Silva.1 There is no need, however, for me to deal with that point now, since there is no evidence in the record which could rebut the statutory presumption arising under section 112 of the Evidence Ordinance. I set aside the order ap