101-NLR-NLR-V-51-ALLES-Appellant-and-ALLES-et-al-Respondent.pdf
411)
Allen v. Allen
1960[Ik thtc Privv Council]
Present : Lord Porter, Lord Radcliffe and Sir John Beaumont
ALLES, Appellant, and ALLES et a*., RespondentsPrivy Council Appeal No. 76 of 1947S. C. 118-119—D. C. Colombo, 586
Evidence Ordinance (Cap. 11)—.Section 112—Child born during continuance of validmarriage—Presumption of legitimacy—Proof of " no access''.
In a suit for divorce the paternity of a child that was bom during the con-tinuance of tho marriage was in issue, and tho question for dociaion was whetherthe ostensible father (the appellant) had no access to the mother (tho firstrespondent) at any time when the child could have been begotten.
It was established that the only date upon which the appellant had accessto the first respondent during any material period was the 9th August. 1941,and that the child was bom on 26th March, 1942. The interval between thetwo dates was 229 days, if both dates were included in the computation.According to the testimony of the doctor who tiad attended the first respondent-on her confinement and delivered the child, tho labour was normal and the
child at birth was “ a mature childan average full term child ”.
The expert evidence left no doubt that a fully dovoloped child normallyappears after a uterine existence of 280 days, calculated from the date of thecommencement of the last menstrual flow. There was, however, no reliableinformation as to wben the mother liad her last menstrual period, butthere was positive evidence of experts that an insemination-delivery periodof 229 days could not produce a fully developed child.
Held, that the appellant had sustained the onus, heavy as it was, of provingaffirmatively that tho only date when he had access to the first respondent wasnot a date when the child could have been begotten, and that the presumptionof legitimacy contemplated in section 112 of the Evidence Ordinance wassufficiently rebutted.
LORD RADCLIFFE —Alles v. AUe*
417
A
XXPPJSAL from a decree of the Supreme Court. The judgment of theSupreme Court is reported in (1945) 46 N. L. R. 217.
D. N. Pritt, K.C., with Stephen Chapman, for appellant.
A. Aiken Watson, with 1. II. Jacob, for first respondent.
Cur. adv. vuli.
June 12, 1950. [Delivered by Loud RAmjUFKK]—
This is an appeal from a decree of the Supreme Court of Ceylon datedthe 11th May, 1945. The proceedings in which this decree was madewere matrimonial proceedings instituted by the first respondent againsther husband, Mr. .Joseph Stanislaus Alios, the present appellant, in whichshe sought to obtain a decree of judicial separation with consequentialrelief, including an order for the payment of permanent alimony to horin respect of tyvo children bom during the period of the marriage, a girl,Paulino Frances Hortense, who was bom in 1938, and a boy, JosephRichard, who was bom on 26th March, 1942. This claim was met byan answer on the part of the appellant in which he denied her right to ajudicial separation, denied that the boy, Joseph Richard, was any sonof his, assorted that tho first respondent had committed adultery withthe second respondent, Dr. T. S. M. Samahin, on sevoral occasions duringthe year 1941, and prayed for a divorco a vinculo matrimonii and anaward of Rs. 25,000 by way of damages against the second respondent.
Thus among the matters that were in issue in the suit there arose,though indirectly, the issue of the boy's paternity. On the 11 th December,1942, the trial judge framed the issues and after some discussion heincluded an issue, numbered 7, :I Is the child, Joseph Richard, not a sonof the first defendant ? It seems to have been agreed that a findingmade on this issue in these proceedings would not be binding on the boy,but tlie learned judge decided that ho must (leal with issue No. 7, sinceit had a bearing on the main question of matrimonial misconduct on thepart of the wife and also because an answer to it would detomline thequestion whether the appellant was liable to pay maintenance in respectof this boy.
The trial was a lengthy one, lasting from 11th December, 1942, until15th February, 1943, and on 27th February, 1943, the District Judge ofthe District Court of Colombo, Dr. R. F. Dias, delivered judgment. Forthe purposes of this appeal it is sufficient to note that he held that the firstrespondent had committed adultery with the socond respondent on variousdates between the I5tk February, 1941, and the 20th August, 1941, andthat the appellant was entitled to a docree of divorce mid to custody ofthe infant daughter of the marriage. He awarded the appellant a sum ofRs. 15,000 as damages against the second respondent. A detailed reviewof the evidence led him to conclude that tho child, Joseph Richard, couldnot be a son of the appellant and he decided accordingly that the firstrespondent was entitled to the custody of that child and that the appellantwas not bound to maintain him.
1*J. N. A 98322 (6/50)
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LORD RADCLIFFE—Ailzs v. Altes
Both respondents appealed to the Supreme Court, which on 11th May,1 Wo, made an order in part upholding and in part reversing the judgmentof the District Court. The findings as to adultery and the divorce decreewere upheld, but tho appellant’s damages as against the second respondentwere reduced to Its. 10,000, and a declaration was made that the appellant-had failed to disprove the legitimacy of Joseph Richard. Since no appealis before their Lordships on behalf of either of the respondents, the onlymatters that were in controversy before them wort? the issue as to thepaternity of the child and the issue as to tho quantum of damages, liiboth respects the appellant seeks to have the judgment of the SupremoCourt reversed and tho judgment of the District Court restored. It willbo convenient to defer the comjwuratively minor point as to the quantumof damages until consideration has been given to the legitimacy issue, andit is to the latter, therefore, that their Lordships will first address theirobservations.
One thing at least is dear. In Ceylon the governing rule is containedin a statutory provision, section 112 of the Evidence Ordinance, whichroads as follows :—“The fact that any person was bom during tho con-tinuance of a valid marriage between his mother and any man, or withintwo hundred and eighty days after its dissolution, the mother remainingunmarried, shall be conclusive proof that such person is the legitimateson of that man unless it can bo shown that the man had no access to thomother at any time when such person could have been begotten or thathe was impotent”. Under this system the Court does not find itself faceddirectly with the question whether the child whose status is in disputo isoris not the child of his ostensible father. That fact is conclusively provedby the mere circumstance of the birth occurring during the prescribedperiod, unless whoever denies the paternity can prove, not that tho childwas not conceived of any union with the ostensible father, but that thatperson had no access to the mother at a tiruo when the child could havebeen begotten or was impotent. It is obvious that in many cases theonus of disproving any access at a time when the child could have beenbegotten must be a heavy one and it is not made the lighter by thouncertainty that still attends much scientific knowledge about theinception and progress of pregnancy. But that being conceded, a Courtthat is furnished, as was the trial Court in this case, with an abundance ofexpert testimony bearing upon this very issue as to the dates within whichJoseph Richard could have been begotten is faced with an issue of fact thatis not incapablo of being resolved ; and, though it must properly require tobe well satisfied by the evidence if it is to conclude that such access as didtake place did not take place at any time when conception was possible, itis not at liberty to reject an affirmative conclusion in deference to thegeneral uncertainty that pervades the subject or to the existence of somemerely theoretical doubt to tho unpredictable achievements of nature.The issue remains whether ou the whole of the evidence made available itcan safely be concluded that there was no access at a time when the childcould have been oonceived.
The peculiarity of the present case is that, owing to circumstances thatare not material, the only date upon which tho appellant had access to thefirst respondent during any material poriod was the 9th August, 1941.
LORD RADCLIFFE—Allen v. Allen
419
Che child was bom on 26th March, 1942. The quostion before their Lord*■hips can therefore he stated in the simplest terms:—“ Did the appellant»rove at the trial that the child that was bom on 26th March, 1942, couldlot have been begotten as a result of his intercourse with his wife on1th August, 1941 ? The interval between the two dates is 229 days, if>oth dates are included in the computation.
Apart from these two fixed dates a few other matters of evidence may>0 treated as established. The most imporbaut was a detailed description>f the child’s appearance at birth. This was provided by the testimony>f Dr. Wickremasooriya, who had attended the first respondent on herconfinement and delivered the child. He described the labour as normaltnd the child as being “ a mature cliild. By that I mean of completeiterine development. It looked an average full.term child”. His testi-nony included details as to the weight of the baby, the condition of its skin,he presence of sub-cutaneous fat, the development of hair, testicles andinger nails and its movements and crying on birth. The doctor said thatiy tho time that delivery took place he was aware that some trouble was>rcwing between husband and wife and for that reason he “ had a goodook ” at the child. Dr. Wickremasooriya had first been consulted by thewife on 23rd October, 1941. On that date he had made an examinationwhich satisfied him that she was pregnant. He found her uterus enlargedto about four fingers breadth (3| inches in his case) above the junctionof the pubic bone, and he considered that she was 14 to 16 weeks from thestart of pregnancy, calculating that from the date of the last menstrualperiod. On 17th December another examination took place at which heheard the foetal heart sounds. Generally speaking, these are audibleafter the 20th week of gestation, calculated as before.
Now the expert evidence left no doubt that, a fully developed childnormally appoars after a uterine existence of 280 days. This is equivalentto 10 lunar months, or, roughly speaking, 9 calendar months, althoughTaylor’s Principles and Practice of Medical Jurisprudence, 10th Ed.,Vol. TT, page 33, in fact gives 274 days as tho average of 9 calendar months.There was some dispute as to whether periods of uterine existence asgiven in medical text books or statistics aro calculated from the date offertilisation of the female ovum or from the date of the commencementof tho last menstrua] flow. Their Lordships arc content to proceed onthe latter assumption, not only because it seems almost inevitable that inmost cases information as to the date of fertilization or fruitful coituswould he unobtainable, but also because they construe the expert evidenceas not raising any conflict on this point. To calculate in this way, failingmore precise material as the basis of statistics, is not to accept or to importany theory that the uterine life of any particular child can in fact beginbefore fertilization has taken place. But it does immediately raise thequestion, which has great importance in this case, whether there is anyroli&blc evidence before the Court as to the date upon which the firstrespondent had her last menstrual flow.
At the trial she deposed that she had a period on 12th July. This is257 days from 26th March and if her statement is to be treated as astatement of fact the child, even if conceived on 9th August, could yet bespoken of as a 257 day child or as a child in the ninth (calendar) month
420LORD RADCLIFKK—f- AUea
lor the purpose of any comparison of its characteristics with those normallyattributed to the full-term child. Oil any view, there would be considerabledifficulty in classifying it in this way, for to do so involves the assumptionthat a fertile coitus took place on the 28th day after the commencement ofthe last preceding menstrual flow. Medical experience appears to suggestthat such an event would be a very exceptional occurrence and a gooddeal of the evidence at the trial was devoted to the question whethersuch a conception ought to be treated as a possibility. In their Lordships’view it would be wrong to treat the possibility as excluded even if therespondent was not, as she asserted that she was, accustomed to the onsetof her menstrual periods at irregular intervals; a circumstance whichwould make it even more difficult to maintain the positive proposition thata fertile coitus on 9th August- could not have taken place. But it stillremains to consider whether this child could properly be spoken of as a257 day child on the ground that his mother had her last menstrual flowon 12th duly.
The plaintiff’s “ whole case stands or falls with this date ”, observedthe trial judge in his judgment. After hearing all the ovidcnce he rejectedher story and held it to be a false date. The Court of Appeal acceptedher story on this point and it is not too much to say that the whole of theirtreatment of the medical evidence is based upon their assumption that thisdate is to be relied upon. Lastly, the only expert witness who was calledon the plaintiff’s behalf, Dr. Thiagarajah, conceded that, if monstruationon the 12th duly was not to be accepted as a fact, he would agree that theconception of this child must have taken place some time earlier than9th August.
On this issue their Lordships think th&t it would be wrong to interferewith the trial judge’s finding. It. is, after all, a question of fact and he hadample grounds for refusing to believe the plaintiff about this matter.Firstly, he found her general evidence untrue, not merely on the questionof adultery but also on unconnected matters. Indeed ho had reason toregard her as a witness recklessly indifferent to the truth. Secondly,Dr. "Wickremasooriya gave evidence that when she first consulted him on23rd October, 1941, she was confused about the date of her last menstrualperiod and was not able to give it. She did supply him with the dates 11 tlito 14th July on a later visit, on 17th December. It is very difficult tobelieve that a woman who professed herself unable to recall the datos onher first critical visit in October would have been able to recollect them twomonths later. Tliirdly, the date she gave in her evidence at the trial was12th July, not 11th to I4th. In view of the fact that Dr. Gunasokera hadgiven evidence that on 11th July he examined the region of her abdomenand kidneys in connection with an attack of renal colic and neitherobserved the presence of any safety girdle nor was told anything of amenstrual flow, the change of date to the 12th Jilly might well be regardedas somewhat significant. She said that she could fix the date definitely“ because that was the day after Dr. Frank Gunasekera ceased to see me 1 ’,but it did not appear why this mnemonic was not available to her onearlier occasions. Lastly, the plaintiff called her sister, Miss Merita deCosta, to support her story of menstruation on 12th July ; but the acoountgiven by that witness was regarded by the trial judge as being so inherently
LORD RADCLIFFii“i4ll6& v. Allt&
421
improbable that he not merely rejected it, just as he rejected her evidenceon other matters, but he also treated it as throwing deeper suspicion onthe plaintiff's date. To reverse this finding on appeal would bo a strongstep, only justified if the trial judge had demonstrably misjudged theposition. But the reasons for accepting the plaintiff's story whichcommended themselves to the learned judges in the Supreme Court fallfar short of establishing that. It is not that there was not some evidencethat tended to confirm her date. She did tell her husband, as he agrees,that she had missed her period in September, the inference being that shehad at any rate not missed her periods before then. If she could betreated os a witness of credit in matters where she is in conflict withother witnesses, there was hor evidence thatoa 23rd October she did giveHr, Wickremasooriya the date of 11th August (on whioh date she hadsome bleeding) as the date of her last period. And it is fair to say thathis examinations on the 23rd October and at later dates, though theycould not be conclusive, led him to estimate a period of pregnancy thatwas consistent with her having had menstruation on 12th July. But a!Jthis is not of great weight, and thoir .Lordships conclude that they oughtnot to maintain the Supreme Court’s reversal of tho District .fudge’sfinding for two reasons. One is that Mr. Justice Wijoyewardene's summaryof the considerations that led him and his judicial colleague to acceptthe plaintiff’s story is an inadequate treatment of the relevant evidence.The other is that neither in that passage nor elsewhere in the judgmentsdoes any weight, seem to be given to the consideration that the Court,was reversing a finding of fact by a trial judge who, having heard andtested the evidence of the plaintiff and her sister, had most explicitlydisbelieved them.
The result is that the consideration of this case must proceed on thebasis that there is no reliable information as to when the first respondenthad her last menstrual period. That leaves the bare question whether thoappellant has proved that Joseph Richard could not have been begottenon 9th August, no more facts being known than the dates of that coitusand of the child’s delivery, the description of the child os he appeared atbirth and such ovidenoe as was afforded by Dr. Wiokrcmasooriya’s sevoralexaminations of the first respondent. Of the three doctors called by tlioappellant who might fairly be regarded as qualified to give experttestimony on this question, two said with conviction that a child such asDr. Wiokremasooriya described tho baby to be at birth could not possiblyhave been conceived as late as the 9th August. Such maturity ofdevelopment as Dr. Wickremasooriya observed appeared to them to beimpossible in a child whose period of gestation was 229 days from con-ception to delivery. These two doctors were Dr. Attygalle, VisitingGynecologist to the General Hospital at Colombo and Lecturer inGynecology at the University of Ceylon, who included the F.R.C.O.G.(Great Britain) among his distinctions, and Dr. Navaratnam, also a
R.C.O.G., Lecturer in Midwifery at the same University, and untilrecently Superintendent of the Lying-in Home, to which he had thenbecome the Senior Visiting Obstetrician. Admittedly, their evidencecommended itself to the trial judge, who accepted their views. Butit is obvious that ho was not bound to accept these views if they appeared
LORD RADCLIFTE—AUe* v. AUea
422
to him to be self-contradictory or unsupportable by reason or if he hadbefore him any genuine conflict of expert evidence on this issue which hefound it impossible to resolve. It is this that their Lordships will nowconsider.
The foundation of the opinion which these doctors expressed lay in theirassertion that medical soience recognised that for a fully developed childto be born a period of some 265-270 or 270*275 days must elapse betweeninsemination and delivery. There was no material difference in datebetween coitus and insemination : consequently 220 days might be takenas the insemination-delivery period of this child if he had been conceivedas the result of coitus on 0th August. They did not maintain that theperiod of 265-270 or 270-275 days was absolute. Or. Attygalle wouldallow about 14 days’ variation oucithor side, taking the period as 270-275:Dr. Navaratnam put it at “ about 265-270 days ”. But neither wasprepared to accept the possibility of so large a variation from the normalas would be involved in 229 days. Now it is true to say that itis impossible to arrive at any certain, conclusion, cither from a perusal ofthe evidence or from a study of the various medical text hooks that werereferred to, as to what is the exact relation between the insemination-delivery period as a scientific measure and the more usual calculation fromthe commencement of the last menstrual period to the date of delivery.Most observations about the development of children at birth must ofnecessity be based on no more precise knowledge than that of the mother’slast menstrual date, and the 265/275 insemination-delivery period presentsthe appearance of being no more than a deduction from those observations,the foundation of which deduction is the belief that insemination normallyoccurs about a fortnight before the expected date of the next menstrualflow. And there is no agreement among the experts that inseminationcan only occur or does only occur towards the middle of the cycle. But,when all this is admitted, the fact remains that it appeared quite clearlyfrom the evidence, not of these two doctors only, that medical sciencedocs recognise the validity of an insemination-delivery period for themeasurement of gestation and that it does use a period of about 265-270days as the measurement of this. The plaintiff’s expert, Dr. Thiagarajah,was not prepared to challenge that proposition. Having regard to thisit seems impossible to say that the positive evidence of these two expertsthat an insemination-delivery period of 229 days could not produce thisfully developed child ought to be rejected as an unmaintainableassumption.
How far then did I)r. Thiagarajah’s evidence come into conflict withthat of Dr. Attygalle and Dr. Navaratnam 1 It is part of the historyof this case that the trial judge refused to guide himself byDr. Thiagarajah’s evidence and passed some rather severe criticism on hisimpartiality, even, accusing him of twisting scientific facts to suit hisNeither of the judges in the Supreme Court thought thisadverse criticism justified. Nor would LoMahips wish to repeatit in any sense that suggests that they do not regard Dr. Thiagarajah m awitness trying honestly to give his opinion on a difficult matter in whiohtheory is bound to play an important part. But the trial judge’simpression that he was too zealous a partisan and that his zeal led him
L0RDJRADCLI7FE—Aik* v. Aik*
423
to advance his theories beyond the point to which they could reasonablygo is not so easily got rid of. For instance, his use of Dr. Fernando’sbare statement that, when called to the plaintiff at the beginning of herlabour, he found that labour had advanced and the membranes wereruptured as indicating such a rupture of tbe membranes as would causepremature labour is really to build a theory without foundation upon anambiguous phrase that Dr. Wickreniasooriya had used in his evidence.The point is not without importance on the question whetherDr. Thiagarajah’s evidence raised any material conflict with the otherside, since he agreed that, if there was not in fact a premature rupture inthe sense in which ho understood the phrase, the child whose appearancewas described by Dr. Wiekremasooriva could not have been conceived onthe 9th August. But, quite apart from this, the fact is thatDr. Thiagarajah’s disagreement with the appellant’s experts centred onthe assumption that the plaintiff had had the menstrual flow to whichshe testified on or about the 12th July. In the course of his cross-examination he made it plain that if that date was “ eliminated ” he wasnot in disagreement with the other doctors and that he would himselfaccept that conception could not have taken place as late as the 9thAugust. Since, for the reasons already given, their Lordships are satisfiedthat the 12th July must be eliminated, to use Dr. Thiagarajah’s phrase,it results that there is no conflict between him and the appellant'switnesses upon this, the crucial issue in the case.
There remains for consideration the evidence of I)r. Wiekremasooriva.The first respondent relics upon certain answers given by him as showingthat he at any rate did not think it impossible that the child delivered byhim could have been oonceived ofi 9th August. Now it does notnecessarily follow that the trial judge, having before him the evidence ofDrs. Attvgallo and Navaratnam and the virtual concession ofDr. Thiagarajah, would bo precluded from finding against the legitimacyof this child by the fact that Dr. Wickrornasooriya had declined to commithimself to the view that such a gestation period was impossible. Tosay that would be to make Dr. Wiekremasooriva’s caution the determiningpoint of the whole case. But, even if this is so, it is impossible to ignorethe special significance of Dr. Wickremasooriya’s evidence in this parti-cular case. He was both the doctor who had examined the plaintifffrom time to time during pregnancy and the only witness who, since hehad delivered the child, could give an eye-witness’s account of itsappearance, and he was also a witness who, realising his poculiar positionbefore the trial, had refused to give a proof of his evidence to either sideand therefore appeared as an impartial expert, enjoying for that reason astatus which was different from that of the other oxperts called. It istherefore necessary to examine his evidence with strict- attention in orderto see to what extent, if at all, it really supported the first respondent’scontention.
In examining it one or two considerations must be borne in mind. Hewas a witness the full significance of whose answers cannot always beappreciated from the printed page. In more than one answor theintonation of voice may have made the whole difference. This is of some
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LORD RAIXILUTK—j&JIga v. A1Xtt
importance because it is apparent from the judgment of the District Courtthat the trial judge himself did not regard Dr. Wickremasooriya’s evidenceas conflicting in any way with that given by Dra. Attygalle andNavaratnam. Indeed he closes his detailed treatment of the question ofJoseph Richard’s legitimacy with this sentence:—“In spite of severecross-examination, Dra. Wickremasooriya, Attygalle, Navaratnam andFrank Gunasckera arc all agreed that this child could not have beenconceived by a coitus on the 9th August Another thing that tonds toobscure the true effect of Dr. Wickreraasooriya’s evidence is that he gaveit on the assumption that he must treat the plaintiff as having really bad amenstrual flow from llth-14th July and his calculations were made onthat basis. Lastly, it is not unfair to remark that at the stage of thetrial when he gave evidence neither the answers of the witness himselfnor some of the questions put to him properly disentangled the issuewhether the fully developed child delivered by him on 26th March couldhave been conceived by any coitus on the preceding 9th August from thequite separate issue whether there could have been a fruitful coitus onthe 9th August if the plaintiff had had her monthly period about tho12th July.
If these considerations are borne in mind, their Lordships think thatin the result, Dr. Wickremasooriya’s evidence does, as the trial judgethought that it did, support the same conclusion as that of the appellant’sother witnesses. What it amounts to is this. His evidence in chiefconcluded with his reply to the question when *’ this child ” was conceived,that the date was “ somewhere round about the first two weeks in JulyDuring the course of his cross-examination he made two replies toquestions from tho Court, upon which Counsel for the first respondenthas naturally placed much reliance. The first is recorded asfollows:—
“ (To Court:
“ Q. Last menstrual period 12-7. Husband has connection on 9-8.
'Tknfc is the only connection. Child born 26-3. that possible ?
A. It is possible. It is not impossible.
“ Q. In other words that is a time when Joseph Richard could have
been begotten ? A. 32 weeks and six days.
“ Q. Is that a period in which this child could have been
begotten 1
A. 32 weeks and six days suggests a premature child.)”*
Their Lordships are satisfied both by the phrasing and by the context inwhich the questions appear that the witness, in Ms answers, was intendingto convey that he did not deny the possibility of a fruitful coitus on the9th August, even so long after what he believed to have been the last dateof menstruation, but was not intending to convey that be aooepted thepossibility of the fully developed child that he saw on 26th March havingbeen conceived on the 9th August. In substance the other passage comesto the same thing.
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“ (To Court:
“ Q. Could tliis child have been conceived on the 17th April 7A. No.
“ Q. The question then arises, as a medioal expert could you excludethe possibility of her conceiving owing to an intercourse on the 9thAugust? A. The 9th August is the 30th day of her menstrual cycle.The probabilities are that even if she had a fertile coitus on that dateit may not have resulted in a pregnancy, because if the period was justdue most likely the fertilized ovum would be cast away with themenstrual discharge.
“ Q. Could you as an expert say that that is excluded ? If you can’tdo it the medical evidence fails and the child must be presumed to belegitimate ? A. I cannot make an absolutely certain statement. Ican say the chances are against conception. That is that conceptionis rather remote.
“ Q. But you can’t definitely say it Mras not ? A, I can’t excludethe possibility.) ”
Here again, however wide an ambit the judge may have intended for histhird question, it is reasonably plain that the witness himself is confininghis attention to the single issue, could coitus on the 9th August haveresulted in pregnancy at all ? and it is that possi bility alone that he declinesto exclude. Indeed, in his re-examination l)r. Wiekremasooriya made hisview adequately plain, as the following passage shows:—
“ Q. Suppose on the 9th August a fruitful coitus took place, whenwould that child be bom if the child born was a mature child ? Couldthe child be born on 26th March ?.4. It would not Ik; a mature
child.
“ Q. A child conceived as a result of coitus on the 9th August ?.4. I think the child would be a premature child, It- would be apremature child.
“ Q. The child did not turn up to be a premature child ? A. No
In these three answers the witness has stated all the material terms of asyllogism of which the conclusion is that the child which did not bearin any way the appearance of a premature child could not have beenconceived on the 9th August.
For these reasons their Lordships are satisfied that the appellant hassustained the onus, heavy as it is, of proving affirmatively that the onlydate when he had access to the first respondent was not a date when thechild Joseph Richard could have been begotten. In this respect they areunable to agree with the judgment of the Supreme Court in Ceylon. Thelearned judges who arrived at the contrary conclusion founded their wholeconsideration of this issue upon the basis that the first respondent didhave a menstrual period on the 12th July. This, as has been pointed out,is an unacceptable basis of fact and its acceptance invalidates the reason-ing that depends on it. In a case of this sort the final conclusion arises
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LORI) RADCLIFFE—AUts e. AUts
out of an appreciation of the evidence as a whole rather than out ofa selection of isolated passages of it, and it indicates no lack of respectfor the carefully reasoned judgments in the Supreme Court if theirLordships do not set out in detail the points at which their own con-sideration of the evidence has led them to differ from those judgments.But it may be helpful if they say that, in their view, too little weighthas been attributed to the combined effect of the testimony of suchexperts as Dr. Wiekremasooriya, Dr. Attygalle and Dr. Navaratnam ;and too much weight to the evidence of Dr. Thiagarajah and to oertainpassages from medical text books which, as sources of evidence, sufferfrom the disadvantage that they were not cited or referred to when thewitnesses were giving their testimony at the trial.
There remains the question of the appellant's damages against thesecond respondent. These were reduced to Rs. 10,000 by the SupremeCourt and the appellant has argued that they ought to be restored to theRs. 15,000 awarded at the trial. The main ground that influenced theSupreme Court appears to have been their view that the appellant hadshown carelessness and neglect as a husband in not determining the closeassociation of his wife with the co-respondent, lie had indeed committedthe error of trusting two people too much : but as one of the two washis wife and the other was his own close friend it is perhaps hard that hiserror should be a matter of reproach to him. Nor do the references in thejudgment of Wijeyew&rdene J. to the financial straits of the second res-pondent appear to have any admissible bearing on the quantum ofdamages. But, even when that much is said, their Lordships do not feelthat they would be justified in interfering with the Supreme Court’sOrder in this matter. It is avowedly based partly on the scale of damagesusually awarded in the Courts of Ceylon : moreover the assessment of thequantum of damages, as indeed the assessment of what is prudent andof what is careless in social relations, depends essentially upon a familiaritywith local conditions which is possessed by the Supreme Court to a muchgreater extent than it can be hy the members of this Board.
In the result their Lordships will humbly advise His Majesty that theDecree of the Supreme Court dated the Ilth May, 1945, should be set asidein so far as it directs that the Decree of the District Court of Colombodated the 27th February, 1943, should be modified hy declaring that theappellant has failed to disprove the legitimacy of Joseph Richard, and inso far as it directs that the District Judge do consider the questions ofcustody and alimony in respect of Joseph Richard, and in so far as itgives directions as to the costs of the first respondent's appeal; and that inlieu thereof there should be an order that the first respondent should paythe appellant’s costs of her appeal; and that save as aforesaid, the Decreeof the Supreme Court dated 11th May, 1945, should bo affirmed. As thefirst respondent appeared in forma pauperis before this Board and theappeal failed on the issue of damages which alone concerned thesecond respondent, there will be no costs of the appeal before theirLordships.
Decree varied.