1946  Present: Howard C. J.

RANASINGHE, Appellant, and SIRIMANNA, Respondent.

76- M. C. Chilaw, 23, 343.

Evidence Ordinance, s. 112- Meaning of ?access to the mother? ? Legitimacy of child born during subsistence of marriage.

The word ?access? in section112 of the Evidence Ordinance means no more than opportunity of intercourse.

Per HOWARD C. J. ??in view of this decision [Karapaya Servai v. Mayandi A. I. T. 1934 P. C. 49] the judgment of the Full Bench in Jane Nona v. Leo (25 N. L. r. 241) that the word ?access? in section 112 of the Evidence Ordinance is used in the sense of ?actual intercourse? and not ?possibility of access? or ?opportunity for intercourse? can no longer be regarded as binding authority?.

APPEAL from a judgment of the Magistrate?s Court of Chilaw.

              H. W. Jayewardene, for the defendant, appellant.

              No appearance for the applicant, respondent.

Cur. adv. vult.

March 18, 1946. HOWARD C.J.-
   
The appellant in this case appeals from a judgment of the Magistrate?s Court of Chilaw holding that he is the father of the children (1) Ethelreda, (2) Hector, and (3) Alreda and direction him to pay Rs. 15 per month for the three children at the rate Rs. 5 for each child. Mr. Jayewardene on behalf of the appellant contends that the order of the Magistrate cannot be allowed to stand, as the application, the mother of the children, a married woman, has not proved that her husband had no access to her at any time when such children could have been begotten. It is contended that the application has failed to rebut the legal presumption created by section 112 of the Evidence Ordinance. This section is worded as follows:-

?The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty 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 man had no access to the mother at any time when such person could have been begotten or that he was impotent.?

In the case of Karapaya Servai v. Mayandi it was held by their Lordships of the Privy Council that the word ?access? means no more than opportunity of intercourse. It had been suggested in that case by Counsel for the appellant that the word implied actual cohabitation. In view of this decision the judgment of the Full Bench in Jane Nona v. Leo2 that the word ?access? in section 112 of the Evidence Ordinance.

    Foot notes

1A. I. R. 1934 P.C. 49.  225 N. L. R. 241.

is used in the sense of ?actual intercourse? and ?possibility of access? or ?opportunity for intercourse? can no longer be regarded as a binding authority. In this connection I have not been unmindful of the judgment of Wijeyewardene j. in Alles v. Alles [1 46 N. L. R. 217.]. At p. 225 I observe that the learned Judge in referring to section 112 of the Evidence Ordinance stated that the section had been construed in Jane Nona v. Leo which was a decision of the Full Court and binding on him. He went on to hold that the first defendant had actual intercourse with the plaintiff and was the father of the child. The effect of the decision in Karapaya Servai v. Mayandi on the authority of Jane Nona v. Leo does not seem to have been considered by the Judges in Alles v. Alles. The omission to do so is no doubt accounted for by the fact that it was unnecessary for their decision in that case.
   
From a perusal of the judgment of the Magistrate it would not appear that the latter has addressed his mind to the question as to what evidence is required to rebut the presumption created by section 112 of the Evidence Ordinance. The applicant in her evidence states that she was married of Joseph Goonetilleke of Irattakulam and that after she became intimate with the appellant she had nothing to do with Goonetilleke. Ethelreda was