1950       Present: Swan J.

KIRI BANDA, Appellant, and HEMASINGHE, Respondent

S. C. 624-M. C. Kandy, 6,758

Evidence Ordinance-Section 112-Child horn during continuance of valid marriage- Presumption of legitimacy-Meaning of " access ".

The word "access" in section 112 of the Evidence Ordinance is used in the sense of " actual intercourse "and not " opportunity for intercourse "

Ranasinghe v. Sirimana (1946) 47 N. L .R. 112 not followed.

APPEAL from a judgment of the Magistrate's Court, Kandy.

M. M. Kumarakulasingham, for defendant-appellant.

No appearance for respondent.

cur. adv. vult.

September 10, 1950. SWAN J.-

The appellant in this case was sued by the respondent for the. maintenance of two illegitimate children. He denied paternity but the learned Magistrate held against him and ordered him to pay Rs. 30 per mensem for the elder child and Rs. 20 per mensem for the younger.

The respondent was married to one Abeywardene. Her evidence' supported by that of her mother, was that Abeywardene left her in the middle of 1945 because he became aware of the fact that she was intimate with the appellant, and that Abeywardene never came back again. Thereafter, she lived with the appellant. The first child was born in October, 1946, and the second child in November, 1949.

There was other evidence which satisfied the learned Magistrate that Abeywardene had nothing to do with the respondent after they parted company in the middle of 1945. He, therefore, held that the presumption created by Section 112 of the Evidence Ordinance was rebutted.

Mr. Kumarakulasingham maintains that the presumption has not been rebutted by the evidence because there was opportunity for intercourse. He relies on the case of Ranasinghe v. Sirimana1[(1946) 47 N. L .R. 112.] in which Howard C. J., following what he thought to be the decision of the Privy Council in Karapaya Servai v. Mayandi2[A.I.R. (1934) P.C. 49.], held that the Full Bench decision in Jane Nona v. Don Leo3[(1923) 25 N. L. R. 241.] could no longer be regarded as a binding authority. I wonder whether the learned Chief Justice would have come to the conclusion if he had considered whether or not the interpretation of the word " access " as meaning merely " opportunity of intercourse " in Karapaya Servai v. Mayandi was nothing more than obiter dictum.

In the case of Alles v. Alles4[(1945) 46 N. L. R. 217.] Wijeyewardene J. referred to Jane Nona v. Don Leo and said that as it was a decision of the Full Bench it was, binding. Howard C. J. in Ranasinghe v. Sirimana, stating that he

was not unmindful of the fact that Wijeyewardene J. took that view in Alles v. Alles, still came to the conclusion that the meaning given to the word " access " by the Full Bench in Jane Nona v. Don Leo could no longer be considered to be authoritative in view of the Privy Council decision in Karapaya v. Mayandi.

In Pesona v. Babonchi. Bass1[(1948)49N.L.R.442]my brother Basnayake considered Ranasinghe v. Sirimana and Karapaya Servai v. Mayandi and said that Jane Nona v. Don Leo was not overruled. My learned brother held that the dictum in Karapaya Servai v. Mayandi was merely obiter, and also took the view that a judgment of the Privy Council in an appeal from some other country is not binding on us until we adopt it ourselves.

While holding that Jane Nona v. Don Leo had not been overruled my learned brother ventured to depart from the meaning given to the word access " by the learned judges who decided that case, and construed it to mean " actual intercourse " as well as " personal access under circumstances which raise the presumption of actual intercourse".

In my opinion, the meaning given to the word access in Jane Nona v. Don Leo still holds good. I say so for the very good reason that in the Alles case their Lordships of the Privy Council had before them the interpretation of the word access by Wijewardena J. relying on Jane Nona