[FULL BENCH.]                     1923.

Present: Bertram C.J., Ennis, Porter, and Schneider JJ.,
 and Garvin A. J.

JANE NONA v. LEO

666-P. C. Kandy, 10,440 H.

Evidence Ordinance, s. 112-Access to the mother-Legitimacy of child born during subsistence of valid marriage-Impossibility of access.

The word "access " in section 112 of the Evidence Ordinance, 1895, is used in the sense of '' actual intercourse," and not " possibility of access."

Per BERTRAM C.J., SCHNEIDER and GARVIN J. J. (dissentiente ENNIS and PORTER JJ.).-A judgment of the Supreme Court is not to be treated as a collective judgment unless all the Judges are present. A judgment of three Judges delivered at a time when four Judges constituted a Full Bench is not a judgment of the Full Bench, and may be over-ruled by the Collective Court.

BERTRAM C.J.-It is not competent for a bench of three Judges to over-rule the opinion of a previous bench of three Judges, just as it is not competent for a bench of two Judges to over-rule a judgment of two Judges.

SCHNEIDER J.-A judgment of a bench of two Judges is not binding upon another bench of two Judges.
The rule of the English law that parties to a marriage shall not be entitled to give evidence as to the fact of the absence of intercourse between them, and the principle that has been developed from the rule that in maintenance cases, where a married woman seeks to charge a person not her husband with the maintenance of her child, the fact of the husband's non-access must first be proved by independent evidence, and that she may then, and not till then, give evidence herself as to the parentage of the child, is not our law.

IN this case the applicant, who was a married woman, claimed maintenance for an illegitimate child from the defendant. The defendant denied paternity. The learned Magistrate dismissed the application as the applicant had not proved impossibility of access by her husband. The applicant appealed. The case was reserved for argument before a bench of five Judges by Bertram C.J. The case came up for argument before the Collective Court on November 27, 192.

The following is the judgment of the learned Magistrate (W. 0. Stevens, Esq.):-

The applicant alleges that the defendant is the father of a child which was born to her on July 11, 1918, and sues him for its maintenance under section 3, Ordinance No. 19 of 1889. At the time of

the child's birth the applicant was the legal wife of a certain Abaranhamy, who married her several ye8rs prior to that date. The defendant denies paternity, and the applicant has to rebut the presumption  raised by section 112 of the Evidence Ordinance that the child is the son of Abaranhamy. To do so she must prove that Abaranhamy had no access to her at any time when the child could have been begotten, or that he was impotent. There is no suggestion of impotency. The question for decision is, therefore, whether there was possibility of access. Under the Roman-Dutch law the period of pregnancy was limited to a minimum of seven and a maximum of eleven months. The child, therefore, must have been conceived between August 11 and December 11, 1917. Now, the applicant and her mother state that towards the end of 1916 Abaranhamy quarrelled with the applicant and left her, and that a few weeks later the defendant, under whom Abaranhamy was employed, induced her to go with the defendant to Negombo on the pretext that Abaranhamy was ill in Negombo and wished to see her. The applicant states that after her arrival in Negombo she never saw Abaranhamy, but was induced by the defendant to become the defendant's mistress ; that she lived with him as such, and some months later bore him the child in question. She further states that the defendant duly maintained her and the child until about the middle of 1922, when he induced her to accept a lump sum of money in composition of all future claim on him.