COURT OF APPEAL.
ABEYAWARDENA. J. AND RAMANATHAN. J.
C.A. 287/83 – FAMILY COURT. BADULLA 65749.
OCTOBER 2. 1986.
Judgment-Must judgment be dated?-Code ol Criminal Procedure Act No. 15 of1979. sections 279 and 283-Basic Maintenance-Maintenance for illegitimatechild-Corroboration-Maintenance Ordinance, section 6-Evidence Ordinance, section157-Does previous statements made by applicant amount to corroboration of herevidence-Admissibility in evidence of admission made by respondent toPolice-Limitations in the Code of Criminal Procedure Act No. 15 of 1979, whetherapplicable.
The applicant claimed maintenance from the respondent for her illegitimate childalleging the respondent to be the father of the child. The applicant had made astatement (P1) to the Police and to the Grama Sevaka in the presence of her motherboth of which claimed that the respondent was the father of the child. In addition, therespondent had made a statement (P2) to the Police wherein he admitted paternity.
The judgment of the Magistrate making order for the payment of maintenance for thechild was not dated but the journal entry of that day stated "see order'.
The fact that the journal entry stated the date of the Order, is sufficient compliancewith the requirements of sections 279 and 283 of the Code of Criminal Procedure ActNo. 15 of 1979. The mere fact that the Order has not been dated does not constitutean irregularity.
The nature of a maintenance action is basically enforcing civil liability and is not acriminal proceeding. The Provisions of the Code oft Criminal Procedure Act whichimpose a limitation in regard to the use of statements recorded by the Police in thecourse of investigation apply only in criminal cases. The respondent in a maintenancecase does not stand in the same position of an accused person and the prohibitionsapplicable in criminal proceedings do not apply in maintenance actions. P2 is admissibleand a judge is entitled to act upon it.
Previous statements made by the mother of an illegitimate child to a third party asto the paternity of the child is sufficient corroboration of her evidence for the purpose ofsection 6 of the Maintenance Ordinance. The applicant's evidence is sufficientlycorroborated by P1 and the applicant's statement to the Grama Sevaka.
Where there is evidence which if believed supports the Magistrate's conclusionthat the evidence of the applicant is corroborated in some material particular, anappellate court should not on a reading of the depositions interfere on questions as tothe mere degree of corroboration.
Cases referred to:
Ponnammah v. Seeni Thamby – (1922) 22 N.L. R. 395.
Wijeratne v. Kusumawathie – (1948) 49 N.L.R. 354.
APPEAL from a judgement of the Family Court, Badulla.
Sanath Jayatilleke for appellant.
J. C. T. Kotalawala for respondent.
Cur. adv. vult.
October 30. 1 986.
The applicant claimed maintenance in the Magistrate's Court ofBadulla from the respondent for her illegitimate child born on the 3rdFebruary 1 980 alleging the respondent to be the father of the child.
The applicant's evidence was that the respondent was herbrother-in-law. When she had gone to assist her sick sister in thehouse-work in the respondent’s house the respondent had sexualintercourse with her and she had conceived in April 1979.
The Magistrate in his order has stated that there is no necessity tolook for corroboration of the applicant's evidence in view of therespondent's statement to the Police P2 made on the 22nd ofSeptember 1979 where the respondent had admitted sexualintercourse with'the applicant and was prepared to pay some moneytill the child was born and after the birth to increase it. He wasprepared to adopt the child after a blood test.
The applicant in her evidence has stated that she had sexualintercourse with the respondent in April 1979 and thereafter herperiods had stopped. However the applicant in her statement to thePolice P1 has stated that she went to the respondent's house in May1979. A point was made as to this discrepancy in the evidence. Thetrial judge has reconciled this discrepancy on the basis that it was amistake on the part of the applicant and that the statement had notbeen read over to her by the Police.
The respondent had not given evidence but his wife had stated thatthe applicant was not residing in the house at the material time.
The Magistrate had accepted the evidence of the applicant and alsothat her evidence has been corroborated and ordered a sum of Rs.100 as maintenance for the child. It is against this order that therespondent has appealed.
The following six submissions were made by counsel for therespondent-appellant
That the Magistrate has failed to date and pronounce the.judgment in open court as required by sections 279 and 283 ofthe Code of Criminal Procedure.
The Magistrate has misdirected himself on the law when hestated, that one does not have to look for corroboration of theapplicant's evidence in view of the statement made by therespondent to the Police on 24th September 1979 marked P2.It was submitted-that statements made to a Police Officer canbe used only for restricted purposes. Furthermore section 1 10of the Criminal Procedure Code makes a respondent to be in thesame position as an accused person.
– (3) The Magistrate, having misdirected himself on the admissibility'of P2 has lost sight of the requirements of section 6 of theMaintenance Ordinance read with section 1 57 of the EvidenceOrdinance. The Magistrate has failed to analyse the evidenceplaced before him.
There is no judgment as it does not contain the basic elementsof a judgment,
The evidence does not lead to the irresistible conclusion that
the respondent is the father of the child..
It was also submitted that the Magistrate has stated in his orderthat the respondent's request of confidentiality had to be takenseriously in view of the practice of some Kandyans to keep thesisters of their wives as mistresses has clearly drawn to the-personal knowledge of the Magistrate with regard to the hebitsof Kandyans and although it has been also referred to in thewritten submissions of the appellant's counsel in the lowercourt. This makes it worse as it is the personal knowledge ofcounsel which the Magistrate has adopted in his order withoutany consideration to its truth or falsehood. Reference wasmade to 1 5 NLR page 36.
On the first question raised by counsel in his submissions.we are• satisfied that the judgment has been pronounced in open court andhas been dated. We have perused the journal entries in the record andobserved that on the 6th December 1982 it has been recorded thatthe order will be for 10th January 1983. Furthermore, the journalentry of 10th January 1983 stated 'see order'. Therefore the orderwas delivered on 10th January 1983. We have also observed that thepetition of appeal has not stated that the order was not delivered on1 Oth January 1 983.
The Tact that the journal entry has stated the date of the order issufficient compliance with-the requirements of the Criminal ProcedureCode. The mere fact that the order has not been dated does notconstitute an irregularity and we are of the opinion, that there is a validjudgment made by the trial court judge.
As regards the second submission made by counsel that theMagistrate has misdirected himself in relying on P2 as it was notadmissible under the Evidence Ordinance and the Criminal ProcedureCode. It must be remembered that P1 was the applicant" s statementto the Police and P2 was the respondent's statement to the Police.
The nature of a maintenance action is basically enforcing a civilliability where a father is under a duty to support his legitimate as wellas illegitimate begotten children. A mother on behalf of a child cancompel the performance of this duty to support both the child andherself. The Maintenance Ordinance does not deal with criminalmatters but has merely vested the Magistrate's Court with thisjurisdiction as the Magistrate's Court is the quickest, easiest andcheapest method of enforcing this civil obligation. Though filed in theMagistrate's Court they are not like ordinary criminal cases. The rulesof procedure are relaxed. There is no charge on plea recorded as in acriminal case. The only question asked from a respondent is as towhether he admits paternity and marriage.
I am of the opinion, that P2 is a statement made by the respondentand is admissible and a judge is entitled to act upon it. The provisionsin the Criminal Procedure Code, which impose a limitation in regard tothe use of statements recorded in the course of investigation appliesonly in criminal cases. Therefore admissions are admissible. Therespondent does not stand in the same position as an accused personand the usual prohibition applicable in criminal proceedings do notapply in maintenance actions.
The third submission was that the Magistrate had lost sight of therequirements of section 6 of the Maintenance Ordinance read withsection 157 of the Evidence Ordinance.
Let us examine the requirements of section 6 of the MaintenanceOrdinance. In terms of this section no order for maintenance can bemade on the mother's evidence unless there is corroboration of thatevidence in some material particular by other independent evidence,to the satisfaction of the Magistrate.
I am of the opinion, as maintenance actions are not criminalproceedings and that section 157 of the Evidence Ordinance appliesto corroborate the testimony of an applicant with the formerstatement of the witness as to the same facts in a maintenance case.The type of corroboration required by section 6 of the MaintenanceOrdinance makes an applicant's former statement as to the same factadmissible. Therefore previous statements made by the mother of anillegitimate child to a third party as to the paternity of the child issufficient corroboration for the purpose of satisfying the requirementsof section 6 of the Maintenance Ordinance. This is the correct positionin law as seen in Ponnammah v. Seeni Thamby (1). This was a fullBench consisting of Bertram, C.J.. Ennis, J. and De Sampayo, J.where Bertram, C.J. expressed the view that a statement made at orabout the time when sexual intimacy is continuing between the partieswould fall within section 157 of the Evidence Ordinance. Therefore a. statement by the woman to another person alleging intimacy iscorroboration within section 157 of the Evidence Ordinance.Therefore the law is well settled with regard to the admissibility ofprevious statements in maintenance actions.
In the present case there is corroboration. The complainant'sstatement to the Police P1 and also'the applicant's statement to theGrama Sevaka in the presence of her mother would be sufficientcorroboration in terms of the Maintenance Ordinance requirements.
On the fourth submission that the learned Magistrate's order doesnot amount to a judgment, I need only to state that he has dealt withthe points at issue when he pronounced the finding, that therespondent is the father and ordered to pay maintenance at Rs. 100per month to the child. The Magistrate has been satisfied with theapplicant's evidence. The respondent has not given evidence. In acase of this type where convincing evidence has been led by theapplicant it is unfortunate that the appellant has not deemed itnecessary to give evidence. The respondent has called his wife to giveevidence which has not been accepted by the Magistrate. We aresatisfied that the Magistrate's order is a valid judgment.
On a balance of evidence before the Magistrate, he has been ‘satisfied by the applicant s evidence. An appellate court must bear inmind the words of Basnayake. J. in Wijeratne v. Kusumawathie (2). Inconsidering in appeal the question under section 6 of the MaintenanceOrdinance, it was stated that the court should give due weight to thewords "to the satisfaction of the Magistrate". These words in his viewrequire that where there is evidence which if believed supports theMagistrate's conclusion that the evidence of the mother of the child iscorroborated in some material particular. Then an appellate courtshould not on a reading of the depositions interfere on questions as tothe mere degree of corroboration.
Finally, on the submission regarding the statement made by theMagistrate in his order about the habits of some member of a sectionof a community of this country, we are of the view that the Magistrateshould not have made this false assumption in his order which iserroneous and unwarranted. It is hoped that irresponsible and flippantsubmissions of counsel is not incorporated in judicial orders buttreated with the contempt it deserves by eschewing them. It isregretted that this Magistrate made such an observation but we seeno r.eason to interfere with the order on this score, as it has notcaused any prejudice to the appellant.
The Magistrate has considered the issues raised and has followedthe correct legal principles applicable to maintenance applications andhas accepted the evidence of the applicant and has come to a findingof fact. We do not see any grounds to interfere with his findings. Thejudgment of the Magistrate-is affirmed and the appeal is dismissed.
The Magistrate is directed to recover the arrears of maintenancefrom the date of the institution up to date in reasonable instalments forthe child. The appeal is dismissed. We fix costs at Rs. 210.
ABEYWARDENA, J. – I agree.
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