Vdenis v. Emmie
1952Present : Swan J.H. VELENIS, Appellant, and L. EMMIE, RespondentS. G. 825—M. C. Kalutara, 14,060
Maintenance—Application by wife and child—Denied of paternity of child—Burdenof proof.
Where a wife sued her husband for maintenance for herself and a child and thehusband admitted that the applicant was his wife but denied the paternity ofthe child—
Held, that the burden was on the defendant to establish his defence first.
^.PPEAL from a judgment of the Magistrate’s Court, Kalutara.
Titus Gocmetiileke, for the defendant-appellant.
No appearance for the applicant-respondent.
Guy. adv. vult.
(1947) 48 N. L. B. 433.
(1949) 51 N. L. B. 8.
SWAN J.— Velenis v. Emmie
October 13, 1952. Swan J.—
In this case the applicant-respondent sued the defendant-appellant formaintenance for herself and a child called Premawathie, aged three. Inher application she stated that she was the lawful wife of the defendantand that Premawathie was their child and that the defendant, havingsufficient means, had failed to maintain them in breach of section 2 ofthe Maintenance Or'dinanqe. After recording the evidence of the appli-cant the learned Magistrate issued summons on the defendant. Thedefendant appeared on summons and admitted that the applicant washis wife but denied the paternity of the child. Inquiry was fixed for19.4.52. It was postponed from time to time and ultimately takenup and concluded on 18.7.52. At the inquiry both parties were re-presented. Mr. Francis Silva appeared for the defendant and led evidenceto prove that Premawathie was not his child. When the defendant’scase was closed Mr. Weeraratne who appeared for the applicant calledhis client and a witness in support of his case and the learned Magistratedelivered judgment holding that Premawathie was the defendant’schild. He ordered the defendant to pay the applicant Its. 10 per mensemas maintenance for herself and Rs. 5 per mensem as maintenance forPrem awathie.
Mr. Goonetilleke for the defendant-appellant contends that the proce-dure at the trial was entirely irregular and wants me to set aside the orderand remit the case for re-trial before another Magistrate. For the allegedirregularity he relies on the judgment of Nagalingam A.J. in Vidana v.Ukkumenika ! In that case it w'as held that where the defendantadmitted the marriage but denied the paternity of the child and allegedthat the applicant was living in adultery the applicant had to proveat the trial certain necessary matters before the defendant could becalled upon to “establish his defence”; firstly that the defendant hadsufficient means, and secondly that he had neglected or refused to main-tain his wife, and thirdly that the child for whom maintenance was claimedwas the child of the defendant..
Mr. Goonetilleke very properly brought it to my notice that I>ias J.,in the case of Selliah v. Sinnammah 2, doubted the correctness of thejudgment of Nagalingam A.J. in Vidane v. Ukkumenika (supra).
I am in complete agreement with the dictum of Dias J. in Selliah v.Sinnammah (supra) that maintenance proceedings are civil in theirnature and that the rules as regards burden of proof apply.
The record does not show that the learned Magistrate ruled that thedefendant should begin. But presuming that he held that the burdenwas on the defendant I would unhesitatingly say that he was right.
On the facts the appeal was not pressed. I have no doubt at all thatthe learned Magistrate was correct in holding that the t defendant hadfailed to prove that the applicant was living in adultery and had failedto rebut the presumption of legitimacy as regards Premawathie.
The appeal is dismissed.
2 (1947) 4S N. L. E. 261.
i (1946) 48 N. L. B. 256.
H. VELENIS, Appellant, and L. EMMIE, Respondent
Vdenis v. Emmie