G. P. A. SILVA, S.P.J.—Wimalaralne v. Milina
Present: G. P. A. Silva, S.P.J.
A. A. WIMALARATNE, Appellant, and M. R. MILINA,
S. C. 191/72—M. C. Galle, 50058
Maintenance Ordinance—Section 6—Nature of corroborative evidencewhich is required thereunder.
In an application for maintenance of an illegitimate child,evidence of any number of witnesses who had heard from theapplicant’s mouth that the defendant was the father of the childwould not constitute independent corroboration of the story of theapplicant as to paternity.
Held further, that if the evidence of the mother of the child isunreliable the question of corroboration does not arise.
A. PPEAL from a judgment of the Magistrate’s Court, Galle.
D. R. P. Goonetilleke, for the defendant-appellant.
John Kitto, for the applicant-respondent.
September 14, 1973. G. P. A. Silva, S.P.J.—
The application for maintenance by the applicant-respondentagainst the defendant-appellant in this case has had a somewhatchequered career. The applicant-respondent earlier brought anaction for maintenance in case No. 17468 on 20th May, 1961. Atthis time she had only one child Wimalakanthi and the applica-tion was in respect of that child. During the proceedings of thatcase on 7.12.63, she stated to Court :
“ I have no evidence to prove the paternity of the childfor whom I claim maintenance. I therefore move to with-draw this case ”.
On 12.8.67 she filed the present application for maintenance inrespect of two children, Wimalakanthi aged 9 years, on whosebehalf the earlier application was made, and Wimalakantha,aged 6 years. The learned Magistrate dismissed this applicationon 9th December, 1968, and she appealed from that order. Atthe hearing of the appeal this Court, without interfering withthe dismissal of the application regarding the first child madeorder sending the case back for a fresh trial in respect of thesecond child Wimalakantha. The present appeal is from thejudgment of the Magistrate at the trial held in consequenceof that order made in the earlier appeal to this Court. Onbehalf of the applicant she herself gave evidence and alsocalled two witnesses, one being Kusumawathie, the divorced
G. J?. A. SILVA, S.P.J.-—Wimalaralne v. Militia
wife of the appellant, whom he had married shortly before thefirst application for maintenance was filed by the respondent,and the other, a carter by the name of Martin. The respondent’sown evidence teemed with contradictions on several materialpoints and she has also been contradicted by earlier statementsmade in the course of the first application for maintenance whichI referred to earlier.
In considering her evidence, it must be remembered that shehad to contend with the statement made by her to the Magis-trate at the earlier trial on oath that she had no evidence toprove the paternity of the child. It seems to me that in thecircumstances of this case it was a very serious hurdle whichshe had to clear before her evidence was accepted. For, thedefence in the case was that it was the brother of the respon-dent-appellant, one Kularatne, who was the father of the childrenin respect of whom maintenance was claimed, in which eventone can attribute an important meaning to her earlier evidencethat she had no evidence to prove the paternity of the child. Inaddition to this there was a very significant item of evidencein the testimony of Kusumawathie who was called as a witnessfor the applicant-respondent that the respondent had told herthat both the appellant and his brother, Kularatne were keepingher as their mistress. It is not permissible to disregard thisevidence as it came from the respondent’s own witness. In thelight of this evidence of Kusumawathie, the respondent’s appli-cation to the Magistrate in the earlier case to withdraw itbecause she had no evidence to prove the paternity of the childwould assume great significance for the reason that if bothbrothers were keeping her, she could not have said on oath as towho was the father of the child for whom she was claimingmaintenance. This same consideration will apply equally in thepresent case even in respect of the other child for whommaintenance is being claimed.
While this ground alone is sufficient for the purpose of allow-ing the appeal I should like to deal with the other -submissionof counsel for the appellant that the learned Magistrate mis-directed himself when he treated the evidence of Kusumawathieas corroboration of the story of the applicant-respondent. Ithink there is substance in this contention. Kusumawathie wasdeposing before the Magistrate to facts which she had heardfrom the applicant herself and this surely is not corroborationin the eye of the law. Corroboration must consist of an inde-pendent item of evidence which shows or tends to show that theevidence of the applicant was true to the extent that theappellant was the father of the child fqr whom maintenance was
CJ. V. A. S1X.VA, S.P.J.— Wimalaraine o. Milina
claimed. The evidence of any number of witnesses who hadheard that the appellant was the father from the respondent’smouth would not constitute independent corroboration.
Had the learned Magistrate not misdirected himself on thismatter he could obviously not have held that the evidencesupporting the allegation of paternity was overwhelming on theevidence of the carter Martin alone. On this matter too I aminclined to agree with the contention of counsel for the appel-lant that Martin was hardly a witness who could corroboratethe evidence as to paternity.
Counsel has urged there were a number of other witnesseswho would have been acceptable to court like the Grama Sevakaand members of the family of the applicant who could havebeen called to support her story, and, further, that Martin hadnot been cited by her as a witness in the earlier application. Itseems to me that these criticisms of Martin as a witness are notwithout substance in the circumstances. In this state of theevidence, I think that a court should lean favourably towardsthe appellant and not the respondent.
Counsel has also cited in his favour the case of Turin v. Liya-nora1 53 N. L. R. 310 in which Basnayake, J. expressed the viewthat if the evidence of the mother was unreliable the questionof corroboration of the mother by any other witness did notarise and that the applicant could not in such a case succeed. Ifthat standard is to be applied in the present case, it cannot forthe reasons I have already stated be said that the applicant-respondent was by any standard a reliable witness. Basnayake,
J.went on to say—
“ What the statute provides is that no order for mainten-ance of an illegitimate child should be made unless a motherwho has given convincing evidence is corroborated in somematerial particular. If the mother’s evidence does notconvince the Judge the question of corroboration does notarise ”.
In making this observation he has of course been interpretingsection 6 of the Maintenance Ordinance which states:
“No order shall be made on any such application asaforesaid on the evidence of the mother of such child unlesscorroborated in some material particular by other evidenceto the satisfaction of the Magistrate. ”
This case has also made reference to the case of Le Roux v.Neethling reported in Juta (1891-1892) page 247 in which DeVillers, C. J. laid down the principle in regard to the need for* (1951) S3 NJ,M. 310.
3IHIMANE, J.—Ceylon Workers’ Congress v. Subramaniam Pillai
corroboration and the type of corroboration that is needed in acase of seduction. He observed :
“ I think it may be laid down as a general rule that theplaintiff who seeks to fix the paternity of an illegitimatechild on a man must clearly prove it, and must be corrobo-rated by some independent testimony ; and in case of doubtjudgment must be given in favour of the defendant. ”
I would with respect agree with the observations made inthese two cases and hold that the applicant-respondent has notproved the paternity of the child in respect of whom she claimedmaintenance to the degree of satisfaction that the Court isentitled to expect in this type of case.
I accordingly allow the appeal and set aside the order of thelearned Magistrate granting maintenance and dismiss- theapplication of the respondent made in this regard. I make noorder as to costs.
A. A. WIMALARATNE, Appellant, and M. R. MILINA, Respondent