Haramanis v. Somalatha
COURT OF APPEALJAYASURIYA, J.
C.A. NO. 47/90
M.C. TELOENIYA – PANWILA
CASE NO. 13652/MAINTENANCE
SEPTEMBER 25. 26 AND OCTOBER 31, 1997
Maintenance – Illegitimate child – Independent corroboration – Section 157 of theEvidence Ordinance – False evidence of defendant as corroboration -Statement of applicant as corroboration.
In an application for maintenance for an illegitimate child the evidence of her fatherstating that applicant and defendant lived in the same house and the deliberateand intentional falsehoods uttered by the defendant throw an altogether incrimi-nating and sinister complexion on the evidence of opportunity for intercourse. Thedeliberate and intentional falsehoods advanced in strength, substantiated andcorroborated the applicants evidence in material particulars and weakened thedefendant’s case.
Where a party litigant intentionally utters a falsehood in court, such falsehoodweakens his case and advances in strength the case of his adversary. Lies utteredby a party could amount to corroboration of the case of his adversary.
The statement of the applicant that up to a month before the birth of the childwhich took place on 24. 12. 87 the defendant had sexual intercourse with herand he was living with her as his mistress on the promise of marriage until hedeserted her on 11. 10. 87 is corroboration within the ambit of section 157 ofthe Evidence Ordinance inasmuch as the statement was made at or about thetime when the fact took place". This statement though emanating from the applicant
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could be looked upon as corroboration as her evidence. The test is whetherit was made as early as could reasonably be expected in the circumstances andwhether there was or was not time for tutoring and concoction. It is a questionof fact depending on the attendant circumstances of the case. No hard and fastrule can be laid down as to when a statement is sufficiently contemporaneous.
The applicant's father testified that when he came to hear of her pregnancy hehad questioned the defendant who admitted he was responsible for the pregnancyand would marry the applicant was held by the Magistrate to be trustworthy andcredible.
Cases referred to:
Hobs v. Tinting (1929) 2 KB 1, 22.
Popovic v. Derks 1961 VR 413, 433, 429-430.
Rex v. Lucus (1981) 2 All ER 1008.
Karunanayake v. Karunasiri Perera (1986) 2 Sri LR 27, 83.
Mawaz v. Regina (1967) 1 All ER 80, 82-83.
Ariyadasa v. The Queen 70 NLR 3.
Thavanayaki v. Thamotheram Mahalingam SC 64/80 CA 741/78 MC PointPedro 14572/M.
Ponnamma v. Seenithamby 22 NLR 395.
39 CLW 31.
APPEAL from the Magistrate's Court of Teldeniya – Panwila.
Rohan Sahabandu for defendant-appellant.
D. P. Mahinkande with Preethika Sakalasuriya for applicant-respondent.
Cur. adv. vult.
December 05, 1997.
The learned Magistrate of Teldeniya, in a carefully considered judg-ment delivered on 6. 3. 90, ordered the defendant-appellant to paymaintenance for the illegitimate child, Malagekumburegedaca DhammikaKumari at the rate of Rs. 500 per mensem and the order was directedto take effect from the 29th of January, 1988. In support of the
Haramanis v. Somalatha (Jayasuriya, J-.)
applicant's petition claiming maintenance for the said child, theapplicant, a relation, Rajapakse Mudiyanselage Udagedara Jinadasa,her relation Malagekumburegedara Upananda, her father Samel, herelder brother Wijepala have given evidence before the Magistrateon her behalf. The birth certificate evidencing the birth of the saidchild on 24. 12. 87 has been produced marked E1. The applicant'scomplaint and statement to the police made on 29. 10. 87 has beenmarked as E2 and the statement in reply made by the defendant on6. 11. 87 has been produced on behalf of the defendant marked X1.
The defendant has given evidence at the inquiry before the Magistrateand he has also adduced the evidence of his elder brother,Malagekumburegedara Jinasena before the learned Magistrate.
The applicant in her evidence has . stated that in 1985, on theinvitation of the defendant and his relations, she went over to thedefendant's house and resided in that house to look after and nurseand to attend to the needs of the defendant's aged and sick parents.She has stated that she was related to the defendant and she wasin the habit of referring to him as her "bappa" and the defendantreferred to her as "wedimal duwa". She has stated that her ownparents' house is situated in very close proximity and words spokenloud in one house could be heard in the other house as they wereso closely situated. In her evidence she has stated that the defendant'smother succumbed to her illness and died in November, 1986. Shehas stated that the defendant made love to her and had the first actof sexual intercourse with her at the defendant's mother's house inthe early part of 1986. Thereafter, she has stated, that the defendantpersistently had sexual intercourse with her promising to marry herand she stated that he did not let her get married to any other man.According to her testimony, the child on behalf of whom this applicationis made for maintenance was conceived in February-March, 1987. Shehas stated that she lived with the defendant as his mistresscontinuously even after the death of the defendant's mother in November,1986 and that he deserted her and put an end to the cohabitationonly one month before the date of the birth of the said child which
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took place on the 24th December, 1987. She has made a complaintand statement to the police on the 29th of October, 1987, which hasbeen produced marked E2. The defendant's statement in reply to thepolice made on 6.11. 87 has been produced by the defendant markedX1. The application for maintenance has been filed in the Magistrate'sCourt on the 29th of January, 1988. The applicant has referred toa love affair which developed between the defendant and herself andto the first act of sexual intercourse of the part on the defendant withher which took place in the early part of 1986. In her evidence shehas stated that the defendant addressed her and has stated thus:
She has also referred to acts on the part of the defendant manifestinglove towards her and she has described in detail the events whichled to and culminated in the first act of sexual intercourse which tookplace in 1986. She has stated that even after the death of thedefendant's mother that the defendant lived with her in the same houseand continued to have sexual intercourse with her promising marriagein the future. She has referred in her evidence that she brought tothe notice of the defendant that her menstrual flow ceased in February-March, 1987 and thereafter, the defendant had subsequentlysuggested that in view of the gossip in the village it would be betterfor them to leave the village and live together outside the village andreturn after about two years to the village after the birth of the child.She has stated that even after making this statement the defendantcontinued to have sexual intercourse with her and that she lived withhim as his mistress in the same house and that the defendant attendedto her needs and supplied her with the meals and food to which shemanifested, a special preference. She has stated that the defendantdeserted her and ceased to maintain her one month before the birthof the said child. In her statement to the police (marked E2) she hasstated that whilst she was residing at the defendant's house that thedefendant had sexual intercourse with her and she lived with him as
CA Haramanis v. Somalatha (Jayasuriya, J.)369
his mistress; that the defendant held out a promise of marriage toher and that he by his acts did not permit her to get married to anyother person.
Though her evidence was subjected to a long drawn cross-exami-nation, it is apparent that she has stood the test of cross-examinationand the protracted cross-examination has made no dent whatsoeveron her testimonial trustworthiness. In the circumstances, the learnedMagistrate has accepted her evidence as truthful'testimony adducedbefore him and commented that there has been no reason or groundestablished before him to reject her testimony. The learned Magistratehas held that the defendant has failed to effectively impugn or impeachher evidence. At the inquiry the learned Magistrate has held that thedefendant had failed to establish the spurious charges suggested toher under cross-examination. The learned Magistrate has carefullyconsidered the evidence of the applicant's relation, Upananda and heldthat there was no reason before him on hehalf of the defendantto justify the rejection of Upananda's evidence. However, as witnessUpananda under cross-examination has related facts which inexamination-in-chief he had stated that he was unaware of suchfacts, the learned judge has decided not to act upon his evidence.
The learned Magistrate has considered carefully the evidence givenby the applicant's father and held that none of the allegations andcharges suggested in cross-examination to him had been establishedby the defendant and, in the circumstances he is unable to accedeto the defendant's counsel's request to reject his testimony. He hasheld that the applicant's father, Samel, has given trustworthy andcredible evidence and that he has arrived at a favourable findingin regard to his testimonial trustworthiness and that he prefers toaccept the applicant's evidence after having had the benefit of herdemeanour and deportment. He has held that Samel has given evidencein corroboration of the applicant's testimony in regard to materialparticulars. Reviewing the evidence of witness Wijepala, the learnedMagistrate has commented that since he came to the village oncea month, he lacked sufficient means of knowledge and therefore heis not prepared to act on his testimony.
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In analysing and evaluating the evidence of the defendant, he hasheld that the defendant intentionally and deliberately has given falseand untrue evidence before him. He has held that he has given falseevidence in regard to certain crucial facts which have a pertinentbearing on the facts in issue in the case. He has held that thedefendant falsely denied the relationship which existed between thedefendant and the applicant. The defendant has stated thus in hisevidence :
The learned Magistrate has further held that the defendant hasfalsely denied that the applicant came over and resided in the defendant'shouse to look after his aged and sick parents. The Magistrate hasfurther held that in his attempt to falsely deny that the applicant livedin his house to nurse, look after and attend to his parents’ needs,the defendant falsely referred to his brother and brother's wife andcertain other persons as having nursed and looked after his aged andsick parents. The evidence of the defendant and his witness Jinasena,when analysed and evaluated are contradictory and inconsistentin regard to two crucially important aspects: In the circumstances, thelearned Magistrate has applied the Test of Consistency and Incon-sistency inter se. The defendant has stated that during the time heworked at the Ragama hospital in the years 1986-87 he resided duringthis time not in his house but elsewhere, in his sister's house, thisperiod is crucial as it relates to the time of the conception of the childin question. The defendant has specifically stated thus:
The defendant has made a deliberate and intentional move tofalsely establish that during the period this child was conceived hewas not living in his own house. However, his own elder brother,Jinasena, has given directly contradictory and inconsistent evidenceon this point. He has stated thus:
Haramanis v. Somalatha (Jayasuriya, J.)
Though Jinasena too attempted to give false evidence on otheraspects on behalf of his brother, he has clearly contradicted thedefendant's version and stated that the defendant lived in his ownhouse where his mother lived during the period 1986-87 and that theapplicant was related to the defendant. In view of this glaringinconsistencies in the testimony adduced inter se, the learned judgehas applied the Test of Consistency and Inconsistency and rejectedthe evidence of the defendant as deliberately and intentionally false.Besides, the learned Magistrate has held that the applicant's father,Samel, has given evidence corroborating the testimony of the applicantthat during the period 1986-87, which is the relevant period relatedto the conception of the child, the applicant and the defendant livedin the defendant's house together. This evidence taken in conjunctionwith the deliberate and intentional falsehoods the defendant haduttered because the truth may give rise to certain incriminatinginferences being drawn against him, throws an altogeher incriminatingand sinister complexion on the evidence of opportunity for intercourse.Vide the dicta of Scrutton, LJ. in Hobbs v. Tinlincf'1 – at 22. Theprinciple is that a lie on some material issue by a party indicatesa consciousness that if he tells the truth he will lose. In this context,Justice Hall succinctly remarked : "Matters which otherwise might beambiguous or colourless are rendered corroborative by reason of thefalse denial “Popovic v. Derk&2) at 422. Note the pertinent observationsof Justice Sholl in the same decision, in regard to the effect of afalse denial of an opportunity for intercourse. Vide Popovic v. Derks(supra) at 429 to 430. The learned Magistrate has held that theevidence of the applicant has been corroborated by the deliberate andintentional falsehood uttered in court by the defendant. He has heldthat the defendant had deliberately and intentionally uttered lies whenthe defendant stated untruthfully that there was never a relationshipbetween himself and the applicant and when he stated that theapplicant never resided and lived in his house. He has held that thesedeliberate and intentional falsehoods advanced in strength,substantiated and corroborated the applicant's evidence in materialparticulars and weakened the defendant's case.
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In these circumstances, the principles of law laid down by LordLane, Chief Justice in Rex v. Lucusf* are applicable to the attendantfacts of this case. Where a party litigant intentionally utters a falsehoodin court, such falsehood weakens his case and advances in strengththe case of his adversary. In fact, Lord Lane in this case expressedthe view that lies uttered by a party could amount to corroborationof the case of his adversary. Justice Atukorale in Karunanayake v.Karunasiri Pereraf*' at 83 gave his mind to the issue whether theprinciples laid down in Rex v. Lucus (supra) were applicable to SriLanka. In this context, Justice Atukorale remarked : "It seems to methat the Test which would be applied in determining whether a lietold by an accused or a defendant, whether in or outside court iscapable of constituting corroboration or not, have been correctly setout by Lord Lane, Chief Justice in Rex v. Lucus. Under the circum-stances, I think I should adopt and apply the criteria formulated byhim to local cases, both criminal and civil, in which the question arisesfor consideration". See also in this context the decision of LordHodgson in Mawaz v. Regina, at 82-83.
Professor J. D. Heydon in an article appearing in (1973) 89LQR 552 discussed this relevant issue whether lies uttered couldoperate as corroboration.
According to the testimony of the applicant, the defendant hasdeserted her one month before the birth of the child which took placeon 24. 12. 87. However, in E2 she has stated that the defendantdeserted her on 11. 10. 87 and up to that date he was having sexualintercourse and he was living with her as his mistress extendingpromises of marriage. The complaint marked E2 had been made on29. 10. 87. Thus, that statement comes within the ambit of section157 of the Evidence Ordinance insomuch as "the statement was madeat or about the time when the fact took place" and in terms of thejudgment pronounced by Justice Wimalaratne; this statement, thoughemanating from the applicant could be looked upon as corroborationof her evidence. The Test of Spontaneity and the Test of Contem-poraneity are sufficiently satisfied. The law in its wisdom requires that
Haramanis v. Somalatha (Jayasuriya, J.)
the statement should be made within a reasonable time. The test iswhether it was made as early as could reasonably be expected inthe circumstances and whether there was or was not time for tutoringand concoction. It is a question of fact depending on the attendantcircumstances of the case. No hard and fast rule can be laid downas to when a statement is sufficiently contemporaneous. Vide theobservations of Justice H. N. G Fernando in Ariyadasa v. Queer!®>at 3.
Justice Wimalaratne in the decision in Thavanayaki v. ThamotheramMahalingarrf7) remarked that the full Bench decision in Ponnammahv. Seenithamb/B) has settled the law relating to the admissibility ofprevious statements as corroboration of the mother's evidence andin the circumstances, the difficulties entertained by Justice Nihil in thedecision reported in 39 CLW 31(9) are not sustainable and justified.His Lordship remarked: "Our law has departed from the old generalrule in English law which excludes the witness' former statement tocorroborate his testimony. When the British introduced the Indain andCeylon Evidence Ordinance they departed from the English Rule andincorporated section 157 of the Evidence Ordinance with the limitstipulated in the section. Thus, the statement marked E2, besidesestablishing the consistency of the applicant's version uttered in court,it also amounts to corroboration in material particulars of her testimonyin court.
Though the learned counsel for the apellant persistently urged thatthere was no independent corroboration of the applicant's testimonyin respect of material particulars in terms of section 6 of theMaintenance Ordinance, it must be emphasised that witness Samelin his evidence has stated that when he came to hear of the pregnancyof his daughter that he had questioned the defendant and that thedefendant had admitted that he was responsible for her pregnancyand had on that occasion promised to Samel that he would marryhis daughter. Samel has stated thus in his evidence:
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The evidence of Samel has been held by the learned Magistrateto be entitled to testimonial trustworthiness and credibility. Samel'sevidence relating to the communication made by the defendant onhis interrogation of the defendant contains an implied admission madeby the defendant that he was the father of the child whom the applicantcarried in her womb and that he would marry the applicant and takeher away as his wife. In the circumstances, I hold that the onlycontention urged before me by learned counsel for the defendant-appellant that there was no independent corroboration of theapplicant's evidence in material particulars is an unsustainable anduntenable contention. Learned counsel for the apellant did not impugnthe quantum of the award of maintenance in a sum of Rs. 500 orderedby the learned Magistrate. The applicant has stated that the defendantis in receipt of a monthly income from his profession as air-conditioningand refrigeration technician in a sum Rs. 2,500 per month, in additionto his other income from his houses and agricultural land. The defendanthimself has accepted the fact that he draws an income of Rs. 1,500per mensem from his profession.
I consider the award of maintenance decreed by the learnedMagistrate as eminently fair, reasonable and equitable. In the result,I proceed to dismiss the appeal of the defendant-appellant with costsin a sum of Rs. 3,150 payable by the defendant-appellant to theapplicant-respondent.