Obeysekera v. Chandra
COURT OF APPEALGRERO J.
M.C. RATNAPURA 54741.
JULY 28, 1992.
Maintenance – Paternity of illegitimate child – Corroboration – MaintenanceOrdinance s. 6.
The love letters written by the respondent and produced at the inquiry some ofwhich refer to his embracing the applicant, the complaint which the applicant madeto the Ratnapura Police over an incident which took place when she visited thehouse of the respondent because he suddenly stopped visiting the applicant, thebirth certificate of the child, the evidence of the applicant's mother that she hadseen and knew about the respondent visiting the applicant's house and theapplicant's visit to the respondent's house are all circumstantial evidence whichtend to support the version of the applicant that after a longstanding love affairwith the respondent she had sexual relations with him which resulted in the birthof the child whose paternity respondent now denied.
The evidence of the applicant's mother regarding the applicant's statement toher that she had conceived a child by the respondent is not corroborative evidencebut there was ample other circumstantial evidence to corroborate the applicant'sevidence. It cannot therefore be said that there was no independent evidenceto corroborate the evidence of the applicant as contemplated in s. 6 of theMaintenance Ordinance. Such corroboration can be afforded by circumstantialevidence.
Sri Lanka Law Reports
Cases referred to :
Ponnammah v. Seenithamby 22 NLR .395.
Carolina v. Jayakkody 33 NLR 165.
Tenrtakoon v. Tennekoon 78 NLR 13.
APPEAL from a judgment of the Magistrate of Ratnapura.Anil Obeysekera with J. Wijemanne for appellant.
P. Kenneth E. Perera for applicant-respondent.
Cur. adv. vult.
March 26, 1993.
ANANDA GRERO, J.
This is an appeal made to this Court by the respondent-appellant(hereinafter called as the respondent) against the order made by thelearned Magistrate of Ratnapura, who held that he is the father ofthe child named Nadika Puspakanthi born to the applicant-respondent(hereinafter called the applicant) on 20.4.83, and ordered him to payRs. 350 per month from the date of the application.
Briefly the applicant's case was, that the respondent being aneighbour developed a love affair with her in the year 1980. He startedvisiting her house and also wrote several love letters to her. As timewent on they became so intimate that on 30.3.82 for the first timethey lived as husband and wife and the respondent gave a promiseto marry her. This incident took place at her house when her parentshad gone to tap rubber and her brothers and sisters had gone toschool. Thereafter on several occasions they had sexual relations andlater, she realised that she had conceived. When she informed therespondent that she had conceived, he had given her some medicineto abort the fetus, but it was unsuccessful. She then requested himto marry her, and he promised to do so on 25.11.82. According toher he came to her house till 18.11.82. As he did not come afterthe 18th she had gone to the house of the respondent on 24.11.82and there she met him. On that day there had been a quarrel betweenthe applicant and the mother of the respondent. Over this quarrelthere had been a case filed by the Ratnapura Police against her inthe Magistrate's Court of Ratnapura and it was settled on the date
Obeysekeca v. Chandra (Ananda Grero, J.)
of the trial and she was discharged. On 27.11.82 she made acomplaint to the Ratnapura Police against the respondent. Therespondent admitted that he had a love affair with the applicant, buthe said that after sometime he gave it up. He had also admittedthat he wrote several love letters to the applicant during the periodthey carried on their affair. Letters marked P1, P2, P3, P5, P6 andP7 have been admitted by him as letters written by him. He deniedthat he had sexual relations with the applicant. He stated in hisevidence that the members of his house had not visited the houseof the applicant. He denied the paternity of the child in question.
It was the contention of the learned Counsel for the respondentthat
(1) The letters marked and produced as P1 to P8 and(11) The evidence of the applicant's mother Karunawathie,cannot be considered as corroborative evidence of theapplicant's evidence as required under Section 6 of theMaintenance Ordinance.
In support of his contention he sited Section 157 of the Evidence. Ordinance, and also two decisions of the Supreme Court in Ponnammahvs. Seenithamby (1) and Carolina vs. Jayakoddy (2).
As far as the said letters are concerned, he contended that theywere not written by the respondent to the applicant at or about thetime the sexual intimacy took place between the parties. Some ofthe letters that were produced were written in the year 1980. Theapplicant had admitted in her evidence that no letters were exchangedafter 1981. The learned Counsel for the respondent contended thatas these letters were not written during the period that the allegedsexual intimacy took place (30.3.82 and thereafter) they do not haveany evidential value to corroborate the evidence of the applicant.
Undoubtedly these letters were written by the respondent duringthe period when both of them had their love affair. Some of the versescontained in such letters indicate that the respondent embraced heron many a day. In fact the learned Magistrate in his order referredto some of such verses. The evidence of the applicant was that whenthey started the love affair he began to visit her house. The respond-ent denies that he visited her house. If he did not visit her house
Sri Lanka Law Reports
 1 Sri LB.
how then could he embrace her on many occasions as revealed insome of the verses? The inference that can be drawn is that he hadbeen visiting her house and on such occasions that he had embracedher.
The verses in P2 and P7 corroborate the evidence of the applicantthat he began to visit her house after they started their love affair.P2 reveals (verse No. 4) how he embraced her and the satisfactionhe got as a result of such act.
Although these letters were not written at or about the time thatthe sexual intimacy took place between the parties, yet they cannotbe completely ignored and one cannot come to the finding that theyhave no evidential value at all. These letters no doubt were writtenprior to the acts of sexual relations, between the parties. But theytaken together with other material evidence indirectly corroborate insome measure the evidence of the applicant that they lived ashusband and wife. The evidence of the applicant that their love affairstarted in the year 1980 and finally it culminated with sexual relations,is to some extent strengthened or indirectly corroborated by theseletters. In other words the effect of these letters is that they indirectlycorroborate the evidence of the applicant in regard to the sexualintimacy she had with the respondent, and such corroboration is notrepugnant to the corroboration required under Section 6 of theMaintenance Ordinance, provided, that there is other corroborativeevidence available to corroborate the evidence of the applicant.
In the instant case, there is the complaint made by the applicantto the Ratnapura Police on 27.11.82, marked P9. This complaint wasmade by her against the respondent as he had committed a breachof promise of marriage.
Her evidence reveals that when she was conceived and at herrequest he promised to marry her on 25.11.82, but as he did notvisit her after 18.11.82, she had gone to his house on 24.11.82. Athis house an incident had taken place between the applicant andthe mother of the respondent. After she realized that the respondentfailed to honour the promise given to her she had made the complaintP9 to the police. The date he had promised to marry her was 25.11.82.She made the complaint P9 on 27.11.82 as he did not marry heraccording to the promise given to her. Thus P9 falls within the ambitof Section 157 of the Evidence Ordinance. P9 corroborates the
Obeysekera v. Chandra (Ananda Grero, J.)
evidence of the applicant in so far as the promise given to her bythe respondent to marry her on 25.11.82.
Her evidence reveals that he promised to marry her when shetold him she was expecting a child. She expected him to honour thepromise given by him. But when she came to know that he was notgoing to marry her, then on 27.11.82 she had made this complaintto the police. Her suspicion arose when he stopped visiting her after18.11.82. She had even gone to see him on 24.11.82 to his house.Thus P9 throws much light on the appellants evidence and it high-lights the promise of marriage given by the respondent which in turnreflects on what circumstances he had promised to marry her.
The authorities cited by the learned Counsel for the respondentand several other authorities were considered by Malcolm Perera,J. in Tennekoon v. Tennekoon (3). Perera J. followed the decisionof the Supreme Court (Full Bench) in Ponnamah’s case (supra) whichsays that statements made by the mother to third persons somemonths after conception, and some months after intimacy had ceasedwas not corroboration, as the statements were not made at or aboutthe time of the intimacy. Perera J. following the views expressedby Bertram CJ in the aforesaid case, held that if sexual intimacycontinued after conception and down to about the time of the com-plaint (i.e. she carries a child due to the alleged father) then astatement made to a third party at once or shortly thereafter comeswithin Section 157 of the Evidence Ordinance. It appears from theevidence of the applicant that her mother came to know for the firsttime that she is expecting a child on 24.11.82 and that was afterthe incident that took place at the respondent's house. The applicanthad disclosed to her parents on that day that she was conceivedas a result of sexual intimacy she had with the respondent. Theapplicant's mother too had stated in her evidence that on 24.11.82she came to know from her daughter that she was conceived.Applying the aforesaid decisions of the Supreme Court, such state-ments (both the applicant's and her mother's) cannot be treated asstatements made at or about the time of the intimacy, and thereforeno evidential value accrues in so far as the said two statements areconcerned although the learned Magistrate had treated them ascorroborative evidence. But the applicant's mother's evidencediscloses the fact that the respondent had been visiting her housefor a considerable period of time. There had been days when
Sri Lanka Law Reports
 1 Sri L.R.
she was at home he had come to her house. Although she was notaware of the fact that the daughter was conceived till 24.11.82, yetshe was aware that the respondent had been coming to her house.This evidence corroborates the applicant's evidence that he wasvisiting her house.
The learned Counsel contended that there was no independentevidence to corroborate the applicant's evidence that he was comingto her house. This Court is of the view that an analysis of her mother'sevidence reveals that she had seen him coming to her house onmany days and she was aware that he was visiting her house duringher absence. As stated earlier some of the letters produced at theinquiry when assessed with the evidence of the applicant bear testimonyto the fact that he had visited her house and on many such occasionshe embraced her.
In Tennekoon v. Tennekoon (supra) Perera J held that from thevery nature of the case it will be impossible to have directcorroborative evidence of sexual connection. Thus the evidence incorroboration will, in almost all cases, be of a circumstantial character.
In the instant case, the letters produced at the inquiry, thecomplaint of the applicant P9, the birth certificate of the child P10,the evidence of the mother of the applicant regarding the fact thatshe had seen and knew about the respondent visiting the house ofthe applicant and the applicant’s visit to the house of the respondenton 24.11.82, are all circumstantial evidence which tend to supportthe version of the applicant that after a longstanding love affair withthe respondent she had sexual relations with him which resulted inthe birth of the child in question.
The learned Magistrate after a careful consideration of therespondent's evidence has rejected his evidence on the basis thathe deliberately gave false evidence. This Court perused his evidenceand I am of the view, that the Magistrate has formed an accurateopinion about the evidence of the respondent.
Although the learned Magistrate was not correct in treating theevidence of the applicant's mother as corroborative evidence regard-ing the applicant's statement made to her on 24.11.82, that she wasconceived due to sexual relations she had with the respondent, yet,
Dalton Wijeyeratne v, Hermine Wijeyeratne and Others
even excluding that part of the evidence, there is ample circumstantialevidence to corroborate the evidence of the applicant with regard tosexual relations she has had with the respondent.
For the aforesaid reasons, I am unable to agree with the contentionof the learned Counsel for the respondent that there was noindependent evidence to corroborate the evidence of the applicantas contemplated in Section 6 of the Maintenance Ordinance.
In the circumstances, I see no reason to set aside the order ofthe learned Magistrate and hence his order is hereby affirmed, andthe appeal of the respondent is dismissed subject to costs fixed atRs. 450.
OBEYSEKERA v. CHANDRA