Law: Evidence Act, (1 of 1872)

Section: 112

 Evidence Ordinance of Ceylon----------S. 112-"No access" When established-Test-Evidence Act (I of 1872), S. 112.   The significance of the words "no access" in section 112 of the Evidence Ordinance is not fully conveyed by assigning a precise verbal definition to the word "access" itself. A test which considers merely the bare geographical possibility of the parties reaching each other during the relevant period must be rejected completely. Taken at its face value such a test could hardly ever exempt a husband from the onus of paternity and could work real injustice in many cases. "No access" would to established in any case in which, on the evidence available, it was right to conclude that at no time during the period had there been "personal access" of husband to wife in the sense given to that phrase in Lord Eldon's judgment in Head v. Head (1823) Turn L. R. at 140, i.e. "under such circumstances that there might be sexual intercourse". On the other hand, if the evidence in a case did disclose that at any time during the period there had been such personal access-and it must be remembered that the section may often have to be applied when there has been no separation between the married pair-then "no access" would not be established unless the presumption that sexual intercourse bad in fact resulted were rebutted by evidence that displaced the presumption. Though the presumption arising from personal access is a rebuttable one, it is in the nature of things that nothing less than cogent evidence ought to be relied on for this purpose.   The issue always is whether on the whole of the evidence made available it can safely be concluded that there was no access at a time when the child could have been conceived.   Alles v. Alles (1950) 51 N L R 416 at 418 ; Pesona v. Babonchi Baas 49 N L R 442 ; Kiri Banda v. Hemasinghe 52 N L R 69 ; Head v. Head (1823) Turn. L R at 140 ; Jane Nona v. Leo (1923) 25 N L R 241 ; Sopi Nona v. Marsiyan (1903) 6 N L R 379 ; Ranasinghe v. Sirimanna 47 N L R 112 ; Karapuya Servai v. Mayandi A I R 1934 P C 49 and Selliah v. Sinnammah (1947)…