Sri Lanka Law Reports
[2007} 2 Sri L.R
DR. SHIRANl BANDARANAYAKE, J.
SC 21/2006SC Spl LA 286/2004HC RATNAPURA 8/2001MC BALANGODA 39587/MOCTOBER 25, 2006JANUARY 10, 2007
Maintenance Ordinance, Section 6 — Corroboration – When? – D.N.A. Test?Paternity — Cogent evidence — Necessity to corroborate evidence of mother.
The Magistrate's Court found that the appellant is the father of the child andwas directed to pay maintenance to the child. The High Court affirmed the saidorder. It was contended in appeal that, there is a DNA report indicating that hei$ not the father of the child.
Weerasinghe v Jayasinghe
On a suggestion made by the Supreme Court the DNA report was sent tothe GENETECH for a medical opinion – which confirmed the DNA report.
It was contended by the appellant that In the Magistrate's Court therespondent's evidence had not been corroborated by other evidence interms of section 6 of the Maintenance Ordinance.
Per Dr. Shiranl A. Bandaranayake, J.
"In the instant case, it is apparent that the respondent's evidence hadconvinced the Magistrate. In such circumstances, in terms of section 6 itwas necessary for the respondent's evidence to have been corroboratedby other independent evidence, where the question of paternity loomslarge, the mother's evidence would have to be corroborated byindependent evidence".
In cases where parentage (paternity) is in issue the most cogentevidence is likely to be obtained by blood tests in general and DNAtests in particular. Such tests may be used either to rebut thepresumption or allegation of paternity or to establish marriage".
DNA profiling can establish parentage with a virtual certainty; DNAtests are also known as genetic finger printing could by matchingthe alleged father's DNA bands with that of the child's bands afterexcluding such bands that match the mother's would make positivefinding of paternity with virtual certainty.
The DNA test could be used by the appellant to rebut the allegationof paternity.
APPEAL from the judgment of the High Court of Ratnapura.
Cases referred to:
Angohamyv Babasinno 1910 4 Weerakantha's reports 60.
Karuppiah Kanganyv Ramaswamy Kangany 52 NLR 262.
Wimalaratne v Milina 77 NLR 332.
Turin v Liyanora 53 NLR 310.
Le Roux v Neethiing – Juta (1891 -1892) 247.
Stocker v Stocker 1966 1 WLR 190.
Sri Lanka Law Reports
12007] 2 Sri L.R
W. Dayaratne with P. Jayawardane for respondent-appellant-appellant.Ananda Panagoda with Kumari Thirimanne for appeliant-respondent-respondent.
May 24. 2007
DR. SHIRANI BANDARANAYAKE, J.This is an appeal from the judgment of the High Court ofRatnapura dated 14.09.2004. By that judgment the learnedJudge of the High Court affirmed the order of the learnedAdditional Magistrate of Balangoda dated 26.04.2001 by whichthe defendant-appellant-appellant (hereinafter referred to as theappellant) was found to be the father of the child and theappellant was directed to pay a sum of Rs. 4000/- per month asmaintenance of the child.
The appellant appealed to the Court on which Special Leaveto Appeal was granted on the following questions :
Is the entire approach of the learned Magistrate inregard to the question of paternity of the child wrong andhas the learned High Court Judge failed to consider it inhis order?
Has the learned Magistrate failed to consider that interms of section 6 of the Maintenance Ordinance, whichspeaks of corroboration of the evidence of the mother, itmust be taken to include any kind of corroboration whichis recognized by law and has the learned Magistrate aswell as learned High Court Judge failed to consider thesaid question of law?
Has the learned Magistrate erroneously considered themere contradictions of the respondent/petitioner'sevidence as corroborations of the applicant/respondent'scase?
When this matter was taken up for hearing, learned Counselfor the appellant brought to the notice of this Court that there isa report of the DNA test, setting out the results that the appellant
VZeerasinghe v Jayasinghe
(Dr. Shirani Bandaranavake. J.)
is not the father of the child of the applicant-respondent-respondent (hereinafter referred to as the respondent). ThisCourt had thereafter directed the appellant to obtain a specialmedical opinion on the DNA report, which was obtained from theGENETECH Institution.
Accordingly, both learned Counsel agreed that the onlyquestion that has to be considered was as follows:
Hln view of the DNA test report, whether the respondent's
evidence has been corroborated, in terms of section 6 of the
The facts of this appeal, as set out by the appellant, aibeitbrief, are as follows:
The respondent instituted action in the Magistrate's Court,Balangoda against the appellant seeking for orders that theappellant be declared as the father of the child, namely,Rasandahie Sachinika (hereinafter referred to as the child) andfor the appellant to pay a sum of Rupees Five Thousand (Rs.5000/-) per month as maintenance. The .appellant deniedpaternity and therefore was enlarged on a personal bail in a sumof Rupees Five Thousand (Rs. 5000/-) and the case was fixedfor inquiry.
When the said inquiry commenced in April 1998, therespondent, her mother, namely, Kasturi ArachchigeLeelawathie, her grandmother, namely, Matarabha ParanaWithanalage Alisnona and a midwife of the Base HospitalBalangoda, namely Widane Pathirannahelage Nandawathiegave evidence and filed the documents, which contained thebirth certificate of the child (©z1), complaint made by therespondent to the Balangoda Police (©z2) and the Medico LegalReport of the respondent dated 21.01.1998 (oz 3).
The appellant denied allegations including paternity againsthim and stated that the respondent is his divorced wife's eldestsister and he came to know about the birth of the child only atthe inquiry held at Balangoda Police Station into a complaintmade against him by the respondent. He has produced twodocuments, namely his statement made to Balangoda Police
Sri Lanka Law Reports
 2 Sri L.R
Station on 14.10.1997 (X) and the plaint of the Divorce CaseNo. 248/97 of District Court, Balangoda (XI).
Learned Magistrate of Balangoda held that the appellant wasthe father of the child and ordered a sum of Rupees FourThousand/(Rs. 4000/-) per month as maintenance to the child,which order was affirmed by the learned Judge of the HighCourt.
Having stated the facts of this appeal, let me now turn toconsider the question of corroboration by other evidence vis-a-vis the applicability of the DNA test report.
Section 6 of the Maintenance Ordinance deals with the rulerequiring corroboration of the mother's evidence in proceedingsfor maintenance and is in the following terms:
"No order shall be made on any such application as aforesaidon the evidence of the mother of such child unlesscorroborated in some material particular by other evidence tothe satisfaction of the Magistrate."
The said provision is quite clear and what it stipulatesis the necessity for the mother's evidence to be corroboratedby other evidence. Such corroboration of the mother'sevidence has been vital in establishing paternity and thiswas the approach of our Courts that considered matterseven under section 7 of the Maintenance Ordinance, No. 19 of1889, which section was an identical provision to that ofsection 6 of the Maintenance Ordinance. For instance, in theearly decision of Angohamyv Babas/nnol1>, it was held by WoodRenton, J. that corroboration should consist of some evidence,oral or real, entirely independent of that of the applicant whichrenders it probable that her story as to the paternity of thechildren in respect of whom she is applyingfor maintenance is true.
In fact our Courts have been specific of the need forcorroborating the mother's evidence in establishing paternityas even on instances where the mother's evidence hadappeared to be quite impressive. This position was clearly laiddown in Karuppiah Kanganyv Ramaswamy Kanganyi2) where it
Weerasinghe v Jayasinghe
(Dr. Shirani Bandaranayake, J.)
was stated that upon the uncorroborated testimony of themother, a Magistrate cannot make an order against the putativefather.
It Is thus apparent that in a matter, where the question ofpaternity is looming large, the mother's evidence would have tobe corroborated by independent evidence. Such type ofcorroboration was defined in Wimalaratne v MilinaW, where itwas stated that, in an application for maintenance of anillegitimate child, evidence of any number of witnesses,who had heard from the applicant's mouth that thedefendant was the father of the child would not constituteindependent corroboration of the story of the applicant as topaternity.
The necessity for corroborated evidence was considered atlength in Turin v LiyanoraW, in terms of section 6 of theMaintenance Ordinance, where it was stated that,
"What the statute provides is that no order for maintenanceof an illegitimate child should be made unless a mother whohas given convincing evidence is corroborated in somematerial particular. If the mother's evidence does notconvince the Judge the question of corroboration does notarise".
In Turin's case reference was also made to the observationsof De Villers, CJ, in Le Roux v Neethling^5) regardingcorroboration, where it was stated that,
*7 think it may be laid down as a general rule that the plaintiffwho seeks to fix the paternity of an illegitimate child on a manmust clearly prove it, and must be corroborated by someindependent testimony, and in case of doubt, judgment mustbe given in favour of the defendant.m
In the instant matter, it is apparent that the respondent'sevidence had convinced the learned Magistrate. In suchcircumstances, in terms of section 6 of the MaintenanceOrdinance, it was necessary for the respondent's evidence tohave been corroborated by other independent evidence.
Sri Lanka Law Reports
The only independent witness was the midwife, namelyWidane Pathirannahelage Nandawathie. She had been a FamilyHealth Officer attached to the Base Hospital, Balangoda.Admittedly her duty had been to enter the necessary details forthe issuance of the child's Birth Certificate. Except forthe details relevant for that purpose, the witness had notgiven any evidence to corroborate the respondent's evidence.Infact, it is interesting to note that the proceedings of theMagistrate's Court Balangoda of 06.05.1999, disclose that,the Magistrate herself had been of the view that the witnessNandawathie's evidence had been detrimental to therespondent. In such circumstances, it is apparent that therespondent's evidence had not been corroborated byother evidence in terms of section 6 of the MaintenanceOrdinance.
In the light of the aforementioned, it would be ofparamount importance to consider the applicability of theevidence based on the DNA Report in deciding the paternity ofthe child.
As stated earlier, both parties, on a suggestion madeby this Court had agreed to subject themselves to a DNAtest.The said DNA test was carried out by the Molecular
Medicine Unit of the University of Kelaniya and had statedthat the appellant, namely Upul Kumara Weerasinghe isnot the father of the child, namely, Rasandanie Sachinika.
Thereafter, both parties had also obtained a furtherreport from Molecular Diagnostics and School of GeneTechnology (GENETECH), which had clearly stated in itsconclusion that the respondent is not the biological fatherof the child in question and that this could be stated with 100%certainty. Although there are no statutory guidelines as towhen blood and/or DNA tests should be ordered by Court, indifferent instances the Court has directed the use of suchtests. In Stocker v Stocked*), Karminski, J. referred to theimportance of using serological evidence as it could success-fully exclude a proportion of men, wrongly supposed to be fatherof a given child.
Weerasinghe v Jayastnghe
(Dr. Shirani Bandaranavake. J.)
Referring to the use of DNA tests, Cretney and Masson(Principles of Family Law, 15th Edition, 1990, pg. 497) state thatDNA profiling can establish parentage with virtual certainty.Bromley and Lowe (Bromley's Family Law, 8th Edition, 1992, pg.274), considering the use of blood and DNA tests to establishparentage state that the DNA tests, which are also known asgenetic fingerprinting, could by matching the alleged father's DNAbands with that of the child's in question, after excluding suchbands that match the mother's, would make positive findings ofpaternity with virtual certainty (P.M. Bromley and N.V. Lowe, pg.274). Bromley and Lowe on the same issue further had commentedthat,
"In cases where parentage (usually paternity) is in issue themost cogent evidence is likely to be obtained by blood tests ingeneral and DNA tests in particular. Such tests may be usedeither to rebut the presumption or allegation of paternity orto establish parentage" (emphasis added).
tt is thus apparent that a DNA test could be used by the appellantto rebut the allegation of paternity. Accordingly considering thecircumstances of this appeal and based on reasonsaforementioned, I answer the question at issue, in the negative.
For the reasons aforementioned this appeal is allowed and thejudgment of the High Court of Ratnapura dated 14.09.2004 and theorder of the Magistrate's Court, Balangoda dated 26.04.2001 areset aside.
I make no order as to costs.
AMARATUNGA, J.-I agree.
SOMAWANSA. J._I agree.
WEERASINGHE v. JAYASINGHE