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Present : Wood Renton J.
PERERA v. FERNANDO341—P. C. Colombo, 26,504
Maintenance—Evidence of mother that child was supported within twelvemonths of its birth need not be corroborated—Ordinance No. 19 of1889, s. 7.
Under section 7 of the Maintenance Ordinance corroboration ofthe mother's evidence is necessary only on the question of paternity.
The testimony of the mother that the defendant had paid moneyfor the maintenance of her illegitimate child within twelve monthsof its birth need not be corroborated.
fjl HE facts are set out in the judgment.
Vernon Grenier, for appellant.
dune 9, 1911. Wood Renton J.—
This case raises rather an interesting and important point undersection 7 of Ordinance No. 19 of 1889, and I regret that there are noprevious local decision, so far as I am aware, except several of my•own, to help me in dealing with it. The appellant was the applicantIn the Police Court of Colombo for a maintenance order against therespondent, whom she alleged to be the father of her illegitimatechild. Under section 7 of Ordinance No. 19 of 1889 (T will take forthe moment only the clause that is specifically applicable to thiscase), it is provided that “ such an application shall not be enter-tained unless it be proved that the man alleged to be the father ofsuch child has, at any time within the twelve months next after thebirth of such child, maintained it, or paid money for its maintenance/’The appellant gave evidence at the trial, which, if believed by thePolice Magistrate, would, apart from the question of corroboration,to which 1 will refer presently, have been sufficient to satisfy thestatutory conditions. She stated that the respondent supportedher child up to two months prior to the trial. The learned PoliceMagistrate does not say whether or not he accepted that evidence.The appellant further called her mother as a witness, and the mother.said that the respondent had sent money, in the hands of a child oftwo years, for two months after the birth of the child, and none since.The Police Magistrate thereupon said that upon that evidence hewas not prepared to hold that the respondent had supported thechild within the last twelve months, and accordingly he made noorder on the application. Although the Police Magistrate does not
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expressly say so, I think that his order can only be explained on thetheory that he held that the latter part of section 7 of the Ordinance,in which the evidence of the mother of an illegitimate child iarequired to be corroborated in some material particular by otherevidence,, is applicable to the alternative conditions stated in theearlier part of the section. . I am unable to interpret section 7 inthat sense. The three alternative conditions, which are stated to beconditions precedent to the application being “ entertained,” are asfollows: (1) Unless it is made within twelve months 'from the birthof such child; or (2) unless it be proved that the man alleged to bethe father of such child has at any time within the twelve monthsnext after the birth of such child maintained it or paid money forits maintenance; or (3) unless such application is made within thetwelve months next after the return to this Island of the man allegedto be the father of such child, and upon proof that he ceased toreside in this Island within the twelve months next after the birth ofsuch child. Then follows the clause as to corroboration: “ and noorder shall be made on any such application as aforesaid oh theevidence of the mother of such child unless corroborated in somematerial particular by other evidence to the satisfaction of the PoliceMagistrate.” I think that this clause applies only to applicationswhich the Court can entertain. It is clearly directed to those partsof the case which are. dependent on the evidence of the mother. Itis obvious, if we look back at the alternative conditions stated above,that, the proof of some of them might be in no way dependent uponthe mother’s evidence, even if she had to be called as a formalwitness. For instance, the date of the birth of the child and of theapplication for maintenance being made would be established inmost cases by documentary evidence. If the latter part of thesection as to corroboration is to apply to the conditions precedentat all, it must apply to all of them, and the fact that, as regards tbefirst of these conditions, the evidence of the mother would, in mostcases, not really be of great importance, strongly points, in myopinion, to the conclusion that tbe ruic as to corroboration wasintended to apply only to those parts of her case that come beforethe Court after her application has been entertained and has reachedthe point of trial. I am indebted to Mr. A. St. V. Jayewardenc forcalling my attention, as amicus curiae, to the English case of Hodgesv. Bennett,1 where, in the construction of sections 2 and 3 of 7 and 8Viet., c. 101, it was held by the Court of Exchequer not to be necessarythat the testimony of the mother that the defendant had paid moneyfor the maintenance of her illegitimate child within twelve monthsof its birth should be corroborated. Sections 2 and 3 of thatstatute correspond closely to secton 7 of Ordinance No. 19 of 1889.I may direct special attention to the words of Wilde B.: “The3rd clause ” (that is to say, the section dealing with corroboration)
1 (I860) 5 B. A N. 625.
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has reference only to the proceedings which are taking place uponthe hearing when the question is whether the person alleged to be thefather is really so. There must be some evidence to corroborate thewoman's testimony on that point."
1 set aside the order appealed against, and send the case back) to theItinerating Police Court of Colombo for further inquiry and adjudi-cation on its merits, provided always that the Police Magistrateis prepared to accept the applicant’s evidence in regard to themaintenance of her child by the respondent within twelve monthsafter its birth. The appellant is entitled to the costs of this appeal,if any. All other costs must abide the event
Perera v.Fernand* ■
Set aside and sent back.
PERERA v. FERNANDO