Present : Shaw J.

ROSALINAHAMY v. SUWARIS.

375-P. C. Panadure, 69,795.

Evidence Ordinance, s. 112-Child born within three months of marriage- Is marriage conclusive proof that husband was the father ?- Physical impossibility of access.

The appellant married A, who was not known to her till marriage. A child was born within three months of marriage. The appellant alleging that respondent S was the father of the child claimed maintenance.

Held that section 112 of the Evidence Ordinance did not stand in the way of appellant's claim, and that the fact of marriage was not conclusive proof that A was the father.

Obiter.-Section 112, on the face of it, appears to apply to actions in which legitimacy comes into question, and it does not, on the face of it, appear to have any application to proceedings under the Maintenance Ordinance.

THE facts appear from the judgment.

Wijemanne, for the appellant.

J. S. Jayawardene, for the respondent.

May 3,1921. SHAW J.-

This is a somewhat peculiar case under the Maintenance Ordinance. The appellant took proceedings against the respondent to obtain an order for the maintenance of a child, which she said was the child of the respondent. The facts, as found by the Magistrate, are briefly as follows, namely, that the respondent in fact seduced the applicant, and that she became pregnant from him of the child in question, that the respondent on discovering this arranged a marriage between the applicant and a man named Abraham. This man was a stranger to the girl until the marriage contract was made shortly before the marriage took place; that by the promise of the dowry of Rs. 200, and by concealing from Abraham the fact that the young woman was pregnant, he induced him to consent to the marriage. The marriage took place, and the next day Abraham deserted his wife, having discovered that she was pregnant, and not having received the dowry which he had been promised. The facts that I have mentioned appear to be satisfactorily proved, and the evidence of the applicant supported in material particulars by other evidence. Although the Magistrate has found this state of facts to be true, he has dismissed the applicant's case, in consequence of what he thinks is the law under section 112 of the Evidence Ordinance. That section is as follows: " The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate son of that man, unless it can be shown that that man had no access to the mother at any time when such person could have been begotten, or that he was impotent." That section, on the face of it, appears to apply to actions in which legitimacy comes into question, and it does not, on the face of it, appear to have any application to proceedings under the Maintenance Ordinance. But it has been so applied, and I need not discuss the matter, but for the purposes of this case assume that it applies to the present case. It will be noticed that that section provides that this irrebuttable presumption arises, unless it can be shown that the respondent had no access to the mother at any time when the child might have been begotten. The language of that section has been, if I may say so with due deference, considerably extended by the Full Court in the case of Sopi Nona v. Marsiyan[1 (1903) 6 N. L. R. 379.] The Court there, following more some English decisions than the wording of our

Statute, appear to have held that it is necessary to show impossibility of access of the husband to the wife at the time the child may have been begotten. The wording of the judgments are somewhat different, but Layard C.J. goes so far as to express an opinion that it must be shown to be " physically " impossible. That case is, of course, binding on myself and. other Cour