1947 Present; Dias J

SELLIAH, Appellant, and SINNAMMAH , Respondent

375-M, C. Jaffna, 1,997.

Maintenance-Evidence Ordinance, s. 112-Meaning of "access to the mother''- Legitimacy of child born during subsistence of marriage-Civil nature of maintenance proceedings-Fact of wife's living in adultery-Burden of proof is on husband-Maintenance Ordinance (Cap, 76), ss. 2, 3, 4, 14,

Where a wife sued the husband for maintenance for herself and a child and the Court found as a fact that, although the applicant and the defendant were living apart at the time when the child could have been begotten, there were both the possibility of and opportunities for intercourse-

Held, that the word "access" in section 112 of the Evidence Ordinance meant no more than opportunity of intercourse and that, the defendant was, therefore, liable to maintain the child. In view of the decision of the Privy Council in Karapaya Servai v. Mayandi (A. I. R. 1934 P. C. 49) the judgment of the Full Bench in Jane Nona v. Leo (1923) 25 N. L. R. 241 could no longer be regarded as binding authority.

Held, further, (i) that proceedings under the Maintenance Ordinance are not criminal but civil in their nature ;

(ii.) that before the defendant was heard, it was not the duty of the applicant to have proved, as part of her case, that she was not living in adultery. When allegation is made under section 4 of the Maintenance Ordinance that the wife is living in adultery, the burden is on the husband to prove that fact.

Vidane v. Ukkumenika (1946) 48 N, L. R. 256 doubted.

APPEAL against an order of the Magistrate's Court, Jaffna.

H. W. Thambiah, for the respondent, appellant.

No appearance for the applicant-respondent.

Cur, adv. vult.

June 16, 1947. DIAS J.-

This appeal was pressed on two points. It was urged in the first place that the Full Bench decision in Jane Nona v. Leo 1has not been overruled by the decision of the Privy Council in Karapaya Servai v. Mayandi 2 and that, therefore, the Magistrate's order condemning the appellant to pay maintenance in regard to the child Saraswathie is bad inasmuch as at the time that child could have been begotten the appellant and his wife, the applicant, were living apart and he had established under section 112 of the Evidence Ordinance that during that period he had no " access" to his wife in the sence that no actual marital relations had taken place between them. It was contended in the second place that the order of the Magistrate condemning the appellant to pay maintenance to the applicant cannot be justified because the burden of proving that she was not living in adultery under section 4 of the Maintenance Ordinance (Chap. 76) was on the woman, and that the onus of affirmatively proving that she was living in adultery was wrongly placed on him. In support of the latter proposition, the case of Vidane v. Ukkumenika 3 was cited. For both these reasons it was argued that the Magistrate's order must be set aside.

In Jane Nona v. Leo 3 the word " access" in section 112 of the Evidence Ordinance was held to mean actual intercourse " and not "possibility of access". In Ranasinghe v. Sirimanna 4 Howard C.J. said

1 (1923) 25 N, L. R. 241.
2 A. I. R. (1934) P. C 49.
3 (1946) 48 N, L, R. 256 ; 34 C. L, W. 21.
4 (1946) 47 N. L. R, 112.

"In the case of Karapaya Servai v, Mayandi 1 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. Leo 2that 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 a binding authority." In a recent case i followed the decision