ALLES, Appellant, and ALLES et al., Respondents

077-NLR-NLR-V-46-ALLES-Appellant-and-ALLES-et-al.-Respondents.pdf


A lies and A lies.
217
IMSPresent : Wljeyewardene and Cannon JJ.ALLES, Appellant, and AL.LES et al.. Respondents.
118, 119—D. C. Colombo, 586.
Divorce—Adultery of wife—Denial of paternity of child by husband—Burden
of proof—Measure of damages—Costs—Civil Procedure Code, s. 612—
Evidence Ordinance, Sec. 112.
Where, in an action for divorce, the husband denies the paternity of a child,the burden is on the husband to prove that he is not the father.
Where, the husband had access to his wife at a time when the childcould have been begotten, the fact that during a material part of thetime the wife was in terms of intimacy with another man does not entitlethe hnsband to ask the Court to hold that he is not the father cf thechild.
Per W uetuwsbdene J.
In the assessment of compensation to the husband for injury to hisfeelings and the blow to his marital honour, the fact that he actedcarelessly in allowing his wife to associate freely with the co-respondent,a man of a different race and creed, and neglected to determine their"association, may be taken into consideration in reducing the measure ofdamages.
Where adultery was proved, the co-respondent alone was condemnedto pay the costs of the husband in accordance with the provisions ofsection 612 of the Civil Procedure Code.
T
HE plaintiff instituted this action against the 1st defendant asking1for a decree of separation a mensa et thoro on the ground of malicious
desertion and claiming alimony and the custody of her two children-Hortense and Joseph Richard.
The first defendant filed answer denying that he deserted the plaintiff"maliciously and pleading that the plaintiff committed adultery with the2nd defendant. He denied that he was the father of Joseph Richard.He asked for a dissolution of the marriage and the custody of Hortense,.and claimed Rs. 25,000 as damages against the second defendant.
The second defendant filed an answer and the plaintiff filed a replication,,denying the allegations made against them. The District Judge granteda decree for divorce to the first defendant and condemned the seconddefendant to pay Rs. 15,000 as damages. He held that plaintiff had.committed adultery with the second defendant and that Joseph Richard,was not the child of the first defendant.
N. Nadarajah, K.C. (with him E. B. Wikremanayake, H. W. Jaya-wardene, and O. T. Samarawickreme), for the plaintiff, appellant in-S. C. No. 119 and respondent in S. C. No. 118.—The plaintiff asked fora judicial separation on the ground of malicious desertion and relied onthe letter P 1 sent to her by the first defendant shortly after he left her.That letter contains a final repudiation of the marriage tie and, togetherwith hig evidence that he was finally leaving her, would entitle her to a
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Ailes and A lies.
decree unless the first defendant succeeded in proving the charges ofadultery. The allegations of adultery at “ Merlton ” depend entirelyon the evidence of the servants. The evidence needed careful scrutiny,but the trial judge approached the examination of the. evidence on thefooting that the plaintiff was a “ sexually starved woman ” becauseher husband had been away for a short time. The assumption is un-warranted and bin conclusions based on it should not be adopted. Asto the incident at Bandarawela the evidence is hazy and no adverseinference should have been drawn.
Apart from the specific charges of adultery at ‘ ‘ Merlton ’ ’ and atBandarawela the first defendant sought to prove adultery by showingthat the plaintiff had given birth to a child, Joseph Bichard, who couldnot be his child as the possible period of gestation was too short. In thisconnection the trial judge refused to allow the plaintiff to call Dr. Theo-bald, an obstetrician of international fame, on the ground that his namewas not on the list of witnesses filed before the hearing of the action.It is submitted that the learned judge was wrong in doing so—In re Chen-nell *. Section 175 empowers the court to permit such a witness to beexamined if special circumstances appear to it to render it advisablein the interests of justice. In these circumstances the Appeal Courthas, under section 37 of the Courts Ordinance and section 773 of theCivil Procedure Code, the power to hear the evidence—Herath Singho v.Appuhami 2; Hendrick Appuhamy v. Pedrick Appuhamy s.
The first defendant „has not succeeded in proving that Joseph Richardis not his child. This child was bom during the continuance of themarriage between his mother, the plaintiff, and the first defendant.Section 112 of the Evidence Ordinance is therefore applicable—AminaVmma v. Nuhu Lebbe *; Mary v. Joseph s. It has been held by theFull Bench that “ access ” in section 112 means “ actual intercourse ”and not “ opportunity for intercourse ”—Jane Nona v. Leo V See alsoJaganatha Mudali v. Chinnaswami Chetty ’ and Samuel v. Annammal *.The view is expressed in the decision of the Privy Council in KarapayaServai v. Mayandi 9 that the word “ access ” means no more than “ opportu-nity for intercourse.” In the present case, however, there is evidence notonly of opportunity, but also of actual intercourse on August 9, 1941.And once it is shown that the husband had intercourse with his wife thepresumption of legitimacy is not to be rebutted by proof that other menAlso were intimate with the woman—Gordon v. Gordon 9 10; Warren v.Warren **; Jaganatha Mudali v. Chinaswami Chetty (supra).
The medical evidence led in this case supports the position that JosephRichard who was born on March 26, 1942, could have been conceivedas the result of the coitus on August 9, 1941. The finding of the trialjudge that the first defendant cannot be the father of the child is notcorrect. The period of gestation of a child is taken to be about 9 calendar
9 (1920) 22 N. L. R. 361.* (1926) 27 C. L. W. 87.
‘ (1926) 30 N. L. R. 220.6 (1935) 15 C. L. Rec. 35.
1 L. R. 8 Ch. D. 492 at 506.
« (1923) 25 N. L. R. 241.
7 A. I. R. 1932 Mad. 39.
9 A. I. R. 1934 Mad. 310.9 A. 1. R. 1934 P. C. 49.'» L. R. (1903) P. 141.
» L. R. (1925) P. 107.
A lies and A lies.
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months or, more generally, 10 lunar months minus 15 days, i.e., 265 days.Fifteen days are deducted on the assumption that ovulation takes placein the mid menstruum. But as most medical experts agree that ovulationmay take place at any time in the inter-menstrual cycle a bigger reductionwould be more correct. It may be said, therefore, that the period ofgestation would normally be between 273 to 252 days. After such aperiod of gestation a child bora will be a full term, fully developed child.But Taylor says that the most progressive development occurs in thelast two months and while a 7 months’ child may be clearly distinguished,an 8 months’ child is not with any certainty to be distinguished fromone bom at the 9th month. Moreover, the period of gestation is foundin oases to be lengthened or abbreviated owing to individual variations.The decisions in Gaskill v. Oaakill 1 and Clark v. Clark 2 are applicable-to the facts of this case. The medical authorities say that the deliveryof a full-term child may vary from 174 days to 330 days after fruitfulcoitus—Be Lee and Greenhill’s Principles and Practice of Obstetrics(8th ed.) pp. 96-7, 65; R. W. Johnstone’s Textbook of Midwifery (10th ed.)p. 93; Modi’s Medical Jurisprudence and Toxicology (1943 ed.) p. 325;Taylor’s Medical Jurisprudence (1934 ed.) pp. 41, 47, 53; Tweedie’s-Practical Obstetrics (6th ed.) p. 33; Mazer and Israel’s Menstrual Dis-orders, pp. 56, 70, 185; Cameron’s Recent Advances in Endocrinology(4th ed.) pp. 286-7; Hartman’s Time of Ovulation in Women (1936 cd.) p.63; Titus’s Management of Obstetric Difficulties (2nd ed.) p. 112. MedicalScience has not yet advanced far enough to account for or give anydefinite reason for these variations. The doctors may not therefore saythat the period of gestation in this case is not possible by comparisonwith the development of the child, for the degree and rapidity of develop-ment are not matters of certainty and are still a sport of nature. Thecalculations of thedoctors intheir tables and statisticsaremade from
the last menstrualperiod (L.M. P.).Where the onlypossible day of
fruitful coitus is known it would be incorrect to compare a period cal-culated from thatdate withperiodscalculated fromtheL.M.P. A
reduction of like tolike shouldbe madeby reducing thisalsoto a period
calculated from the L. M. P. Such a reduction was made in Clark v.Clark (supra).
N. K. Choksy (with him Ivor Misso and J. G. T. Weeraratne) for thesecond defendant, appellant in S. C. No. 118 and respondent in S. C.No. 119).—If the alleged misconduct really took place the sum of Rs. 15,000awarded as damages in this case is excessive. The first defendant ismainly responsible for the situation which led to the misconduct. Theability of the second defendant to pay has also to be considered—Maasdorp’s Institutes, Vol. I., p. 102 (5th ed.). The principles whichshould guide a court while awarding damages in a case like the present-one are fully considered in De Silva v. De Silva et al. 3.
H. V. Perera, K.C. (with him E. G. Wikremanayake, C. J. Ranatungeand G. Thomas), for the first defendant, respondent in both appeals.—The findings of the trial judge on the question of adultery are supportedby the evidence and are correct.
1 L. R. {1921) P. 425.
{1925) 27 N. L. R. 289.
{1939) 2 A. E. R. 59.
920
Alles and A lies.
As regards the legitimacy of the child Joseph Bichard the word “ shown ”in section 112 of the Evidence Ordinance means no more than the word“ proved ” in section 3 and does not indicate a higher degree of de-monstration. A presumption of legitimacy arises under section 112from the birth of a child during the continuance of a vsdid marriage butmay be rebutted by proof of non-access on the part of the husband.In Ceylon, unlike England, a husband or wife can- give evidence of non–access to bastardize a child bora in wedlock. This point and the meaningof the word “ access ” in section 112 were decided by the Full Bench inJane Nona v. Leo (supra). “ Access ” means “ actual intercourse " and not■" opportunity for intercourse ”. See also the decision of the House of Lordsin Russell v. Russell *. The dictum of the Privy Council in KarapayaSarvai v. Mayandi (supra) that it means “ opportunity ” is obiter. The•evidence of the first defendant has been accepted by the trial court.According to it there was no sexual intercourse on the 9th and 10th ofAugust, 1941.
Assuming that there was intercourse between husband and wife onAugust 9, 1941, it is submitted that the child born on March 26, 1942,could not have been conceived as the result of that coitus. The childin question did not bear the slightest sign of prematurity, and its intra-uterine life of 229 days was too short for its viability. No case has beenrecorded of a fully developed child born less than 260 days after a single■coitus—Peterson, Haines and Webster’s Legal Medicine and Toxicology(2nd ed.) Vol. I., p■ 951. The medical evidence of Doctors Wickrama-suriya, Attygalle and Navaratnam is reconcilable with the position thatthe child could not have been conceived on August 9, 1941. Dr. Thiaga-rajah’s evidence is biassed. Conception can take place on any day in awoman’s life—Combined Textbook of Obstetrics and Gynaecology by Kerrand others (3rd ed.) p. 181; Sydney Smith’s Forensic Medicine (1945 ed.)p. 318. The date of the L. M. P. is suspect in the present case. A goodnumber of questions put to the doctors, and me answers given by themwere on the footing that the date given by the plaintiff was correct.If we eliminate that date there is complete agreement among the doctorscalled by the first defendant that a child of the degree of developmentobserved by Dr. Wickramasuriya could not have been born on March.26, 1942, from a coitus on August 9, 1941. Dr. Thiagarajah finds difficultyin agreeing with the other doctors because of a premature rupture of themembranes- His dictinction between premature and early rupture doesnot find support in the books—Eden and Holland’s Manual of Obstetrics(8th ed.) p. 230 et seq.; Combined Textbook of Obstetrics and Gynaecologyby Kerr and others (3rd ed.) pp. 363, 365. Further, the evidence showsthat what actually happened was not a premature rupture in the sensein which Dr. Thiagarajah uses the term. In these matters medicalscience has not yet advanced far enough .for a doctor to say with mathe-matical precision this is possible but not that. It is a question of ex–perience, a matter of statistical possibility or impossibility. -The faotthat the plaintiff was carrying on an adulterous intimacy with the-second defendant at or about the time conception must have taken placeis very, relevant. The Court may presume a “ sport of nature ” onlyi L. R. (1924) A. C. 687.
J.—AU«« and A lies.
where the woman has been chaste. In this respect the present case isclearly distinguishable from Gaskill v. GaskUl (supra) and Clark v. Clark(supra).
Application was made in the trial court for a blood-test of the child.This is a recognized method of testing legitimacy. The application was,however, refused.
The sum awarded as damages is not excessive. It is a matter -which isicntirely within the discretion of the trial court—Butterwortk v. Butter-worth *. It is incorrect to take the value of the wife after her misconduct.Prior to her misconduct the home of the first defendant and his wifewas a happy one. The first defendant had implicit faith in the second-defendant. The facts of the case show that the conduct of the seconddefendant was that of a treacherous friend, and the injury caused by himis a grave one. It is not necessary to consider the means and incomeof the co-respondent; what is material is the extent of the injury caused—Lutterworth v. Butterworth 2. The trial Judge has not acted on anywrong principle while assessing damages.
Nadarajah, K.C., in reply:—Every child born of a married womanduring the subsistence of the marriage is prima facie legitimate and the^burden of proof on the defendant to establish illegitimacy is a.heavy oneand must exclude all possible doubt—Gaskill v. Gaskill (supra); Phipsonon Evidence (1942 ed.) 633; Vol. 2 Halsbury's Laws of England (Hailshamed.) paras, 766, 76S, 769.
The distinction drawn by Dr. Thiagarajah between premature andearly rupture is important. Premature rupture accelerates while earlyrupture retards delivery—Midwifery by Ten Teachers (1925 ed.) p. 450;Journal of Obstetrics of the British Empire, Vol. 50 p. 337.
The application that- the child should be submitted^ to a blood-testwas rightly refused—E. v. E. et al. 3; Peterson and ^Webster s LegalMedicine and Toxicology (2nd ed.) p. 218.i
Cur. adv. vult.
May 11. 1945. Wijeyewardene J.—
The plaintiff instituted this action on April 2, 1942, against the firstdefendant asking for a decree of separation a mensa et thoro on the groundof malicious desertion and claiming alimony and the Gustody of her twochildren Hortense and Joseph Richard.
The first defendant filed answer denying that he deserted the–plaintiffmaliciously and pleading that the plaintiff committed adultery with thesecond defendant. He denied that he was the father of the younger child,Joseph Richard. He asked for a dissolution of the marriage and thecustody of Hortense and claimed Rs. 25,000 as damages against thesecond defendant.
– The second defendant filed an answer and the plaintiff filed a replicationdenying the allegations made against them.
The District Judge delivered judgment granting' a decree for divorceto the first defendant and directing the second defendant to pay Rs. 15,000as damages. He held that the plaintiff had committed adultery with
1 L. R. 11920) P 126 at 135.1 L. R. (1920) P 126 at 147.
* S. A. L. R. (1940) T. P. D. 333.
WUEIEWAKDENE J.—Allei and AUes.
the second defendant and that Joseph Richard, was not the child of thefirst defendant. He gave the custody of Hortense to the first defendantand made no order for alimony in favour of the plaintiff or Joseph Richard.
Both the plaintiff and the second defendant have appealed from thejudgment of the District Judge. Appeal No. 118 is the appeal of thesecond defendant and Appeal No. 119, the appeal of the plaintiff.
The first defendant is a Barrister-at-Law prasticing in Colombo andwas acting as a Crown Counsel during a part of the period material tothis aotion. The first defendant’s parents were members of a communityknown as Colombo Chetties. The plaintiff is the child of a ColomboChetty—a cousin of the first defendant’s mother—by a Burgher wife.Both the plaintiff and the first defendant are described in the marriagecertificate as Ceylon Tamils. At the time of their marriage in 1933 theplaintiff was twenty years and the first defendant twenty eight years.Two children were born to the plaintiff, Hortense in 1938 and JosephRichard on March 26, 1942.
The second defendant is a Doctor in Government Service. He is aMalay, 47 years old, married to a Malay lady and is the father of sevenchildren.
Towards the end of 1940 the second defendant became a very intimatefriend of the plaintiff and the first defendant and visited them at theirresidence, “ Merlton ”, Gregory’s Road, Colombo. He began to lunchat ‘‘ Merlton ”, at least, every Sunday and go with them frequently todances and concerts. About this time the first defendant had disposedof his car and whenever he and his wife wanted to go-shopping or callon their friends the first defendant used to telephone to the secohddefendant for his car. The second defendant who did not employ adriver would drive his car to “ Merlton ” and wait at “ Merlton ” whilethe plaintiff and the first defendant went in his car. He had to waitsometimes an hour or two at " Merlton ” until they returned.
Towards the end of January, 1941, the first defendant went to Jaffnato prosecute at the Criminal Sessions of the Supreme Court which openedthere on February 1, leaving at “ Merlton ” besides the servants, theplaintiff, Merita (a younger sister of the plaintiff) and Noel (a youngerbrother of the plaintiff) who was away from home for the greater part ofthe day. On leaving for Jaffna the first defendant asked the seconddefendant to look after his wife and sister-in-law and this was understoodby the second defendant to mean that he should call on them during theabsence of the first defendant and take them in his car when they wantedto go shopping or to attend dances and concerts. The plaintiff herselfwaB in Jaffna from February 27 to March 4. After returning to Colombo,she remained at “ Merlton ” till March 20.
Alice, the cook employed at ‘‘ Merlton ”, says that the second defendantvisited “ Merlton ” frequently by day during this period when the firstdefendant was away at Jaffna and the plaintiff was at “ Merlton ”. Shesaw him going into the spare room and noticed the plaintiff coming outof the room while the second defendant was still in the room. She sawthe plaintiff in the drawing room resting her head on the second defen-dant’s lap and the plaintiff and second defendant behaving as an “ aluth-joduwa ” (newly married couple).
WUEYE'WARDENE J.—Alltit and A lie*:
The plaintiff went to B andarawe la for a change about March 20,with Merita and Hortense and stayed at a boarding house run by Mrs.Solomons. On April 12, the second defendant himself waa at Bandar a-wela having gone there two or three days earlier for the Easter vacation.He was staying at a boarding house run by Mrs. Outschoom. Dr.Babapulle, who 'was spending a few days at Outsohoom’s during Easter,says he saw the plaintiff entering the second defendant's room .one nightafter dinner. He is unable to say whether the second defendant was,in fact, in the room. I do not hesitate to acept the evidence of Dr.Babapulle. It is not the case for the plaintiff that she went to the roomof the second defendant for some innocent purpose. She denies goingthere and the seconnd defendant denies any knowledge of a visit by theplaintiff.
On April 17 first defendant was at “ Merlton " having come downfrom Jaffna. There was a birthday party at “ Merlton ” that day, as it'was the birthday of the first defendant. The plaintiff came from Bandara-wela with Hortense for that party. That evening it was arranged withthe knowledge of the first defendant that plaintiff, seoond defendant.Mr. Namasivayam and Miss Ludowyke—the last two being friends of tljeplaintiff and the two defendants—:should go to BandaTawela in Mr.Namasivayam’s car the next'day and leave Bandarawela with Merita■for a Tennis dance at Nuwara Eliya on April 19 and return to Colombo onApril 20. In pursuance of this arrangement, the plaintiff wired to herfriend Mrs. Jayewickreme asking her to have dinner and sleeping accommo-— dation ready for two at her bungalow in Bandarawela on the 19th. Itwas arranged at the time that the plaintiff and Miss Ludowyke shouldspend the night of April 19 at Mrs. Jayewickreme’s. The seconddefendant intended to go to a Hotel or to Outschoom’s if they hadaccommodation for the night. He had moreover some friends in Bandara-wela with whom he could have stayed. When the party reached Bandara-wela, Miss Ludowyke was left behind in Mrs. Solomon’s boarding housecontrary to the arrangement made in Colombo, and Mr. Namasivayamwent to the house of Mr. Dias, a friend of his. The plaintiff went withthe second defendant to the bungalow of Mrs. Jayewickreme. Mrs.Jayewickreme had prepared a room with two beds. She did not expectthe plaintiff to come with the second defendant. The plaintiff and the''•second defendant dined at Mrs. Jayewickreme’s, and the second defendantdid not show any inclination to leave the bungalow. Mrs. Jayewickremethen directed her brother-in-law to prepare a bed for the second defendantin the spare room adjoining the room set apart for the plaintiff. Therewas a communicating door between the two rooms which were thusoccupied by the plaintiff and the second defendant. These facts areadmitted, but the Counsel for the plaintiff and the second defendantcontended that no inference of misconduct on April 19 should be drawnfrom those facts. They have not been able to explain why the seconddefendant did not adhere to his original plan of .going to a Hotel orMrs. Outechoom’s boarding house and preferred to put Mrs. Jayewickremeinto unnecessary inconvenience. He is an educated person and hewould have noticed that the hostess expected him to go away afterdinner. The plaintiff knew -the bungalow well having- stayed there46/21
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WUEYEWARDENE J.—Altes and Allee.
previously. She must have known that there was a communicatingdoor between the two rooms. However, she chose to remain silentinstead of asking the second defendant to go away. She need not havefelt any uneasiness about making this request, as she was admittedlya close friend of the second defendant. She knew at this time that therewas a good deal of talk about her and the second defendant and yet sheprefered not to interfere with the second defendant who was going toplace her in a false position by occupying the adjoining room.
The plaintiff and others returned to Colombo on April 20, and theplaintiff continued to live at “ Merlton ” with Merita and Hortense.Noel was not staying then at “ Merlton ”. The first defendantleft “ Merlton ” for Jaffna on April 19, and returned to “ Merlton " onAugust 9. He left again for Jaffna on August 10 and returned finally onAugust 20 to " Merlton ” where he continued to reside with the plaintiffuntil December 19, when he left the house taking Hortense with him.
The plaintiff was taken ill on July 9, 1941, and Merita telephoned atonce to Dr. Gunasekera, the family Doctor, and the second defendant.The second defendant came first and Dr. Gunasekera who came a littlelater found him in plaintiff’s bed room with the plaintiff while Merita wasin the verandah. Dr. Gunasekera thought from the symptoms that theplaintiff’s illness was due to renal colic, appendicitis or ectopic gestation.He had to examine her next to the skin. For this purpose she had toundress partially. During this examination the second defendantelected to remain in the bedroom though he was not there in his capacityas a Doctor attending on the plaintiff.
Alice says that after the plaintiff’s return from Bandarawela on April20 the second defendant spent some nights as “ Merlton ” and theplaintiff and the second defendant occupied one room on these occasionsand that the plaintiff alone was taken out by the second defendant inhis car sometimes after dinner. Another servant Pabilis refers to anincident by day during this period. The plaintiff was in the spare roomwith' the second defendant when Pabilis found the plaintiff’s father comingto the bungalow. Pabilis ran and knocked at the door of the spare roomand then the plaintiff rushed out of the room and by going along somepassage unseen by the father contrived to make it appear to her fatherthat she had been in her own bedroom when her father arrived. TheDistrict judge accepts the evidence of Alice and Pabilis.
As the District Judge appered to me to have misdirected himselfwhen he proceeded to consider the evidence of adultery on the erroneousassumption that the plaintiff was in March a “ sexually starved wife ”—an assumption based solely on the fact that the husband had then beenaway from her for three or four weeks—I examined the evidence carefully.On that examination I have reached the decision that the first defendanthas established the charge of adultery.
Now I shall consider the question as to the legitimacy of Joseph Richardwho was bom on March 26, 1942. Section 112 of the Evidence Ordinanceenaets: —
“ The fact that any person was bom during the continuance of a
valid marriage between his mother and any man, or within two hundred
WUBYEWABDEHB J.—AUei mud A lies.
and eighty days after its dissolution, the mother remaining unmarried,shall be conclusive proof that such person is the legitimate son of thatman, unless it can be shown that that man had no access to the motherat any time when such person could have been begotten or that he wasimpotent.”
That section has been construed in Jane Nona v. Leo1, which is a deci-sion of the Full Bench and is binding on us. It was held in that casethat the word “ access ” was used in section 112 of the Evidence Ordi-nance in the sense of ” actual intercourse ” and not “ opportunity forintercourse ”. It was further held that our Courts should not act onthe rule of English Law that parties to a marriage should not bepermitted to give evidence as to the fact of the absence of intercoursebetween them.
This case has been presented on the footing that the first defendanthad sexual intercourse with the plaintiff on April 17, 1941, and thenagain on August 9, 1941. It is not suggested that Joseph Bichard wasborn as the result of the act of coition on April 17, 1941—343 days beforethe date of birth. The case of the plaintiff appears to be that the childwas bora as the result of an act on August 9, 1941. The child havingbeen bora to the plaintiff during the subsistence of a valid marriagebetween her and the first defendant the burden rest on the first defendantto prove that he is not the father of the child.
Five medical witnesses have given their opinion on this question.Four- of them—Dr. Wickramasuriya, Dr. Attygalle, Dr. Navaratnam,and Dr. Gunasekera—were called by the first defendant while Dr. Thia-garajah was called by the plaintiff. Of these witnesses Dr. Wickrama-suriya who is now dead was admittedly regarded as one of the mosteminent obstetricians and gynecologists in Ceylon. Dr. Gunasekerais a general medical practitioner. He did not claim to be an expert ingynecology or obstetrics and he admitted frankly that he did not studyor consider the relevant medical questions for the purpose of giving hi»opinion. The medical evidence dealt with the following questions: —
What was the last menstrual period of the plaintiff ?
Could a coitus on August 9, 1941, have resulted in conception ?
Could not Joseph Bichard have been begotten as the result of a.
coitus on August 9, 1941 ?
On question (a) there is the evidence of the plaintiff that her last:menstrual period was about July 11 to 14, 1941. Dr. Wickramasuriyasays that she made a similar statement to him in December, 1941. Thefirst defendant disputes the correctness of the date, as, according to Dr.Wickramasuriya, the plaintiff was unable to give the date in October,-1941, when she consulted him first about her pregnancy. It is suggestedthat in December she gave a late date in order to be in a position to saythat the baby was conceived after August 9, when the first defendant hadaccess to her. I am not prepared to aocept that suggestion. Dr. Wickra-masuriya says that the plaintiff did not give the date in October and addsthat “ she was rather ill at the time and looked emaciated ” and “ she
(1923) 23 N. L. R. 241.
■3. H. A 00415 (8/BO.
234
WIJEYEWABDBNE J—A lies and AUee.
was rather confused about the date There is some conflict of evidencebetween Dr. Wickramasuriya and the plaintiff as to her statement to himin October. We cannot exclude altogether the probability of Dr.Wickramasuriya making a mistake. There is clearly a conflict betweenDr. Wickramasuriya and the first defendant as to what Dr. Wickrama-suriya told the first defendant in November. 1941 (marginal page 339).The fact is that Dr. Wickramasuriya could not have been expectedreasonably to remember all that passed between him and the plaintifl andthe first defendant about October and November, 1941, when there wasno talk of any trouble between the spouses. There is also the evidenceof the first defendant to the effect, that plaintifl told him in Septemberthat she had missed her period in September. Probably, she thoughtat the time that she had her period in August because she had “ bleeding ”.in August. As that “ bleeding ” cannot be regarded as true menstrua-tion. her statement made to the first defendant did, in fact, amount toher saying that her last menstrual period was in July and not earlier.Moreover, Dr. Wickramasuriya has stated that he examined the plaintiffon several occasions during her pregnancy and that he had no reasonto think as a result of such examination that she had given him anincorrect date. The evidence of Dr. Gunasekera does not necessarilyprove that the plaintifl could not have had her period on July 11. Iwould, therefore, proceed to consider the medical evidence on the footingthat the last menstrual period of the plaintiff was about July 11 to 14.1941.
With regard to question (b) Dr. Wickramasuriya says that while thelikely period for fertilisation would be what is known as the mid period(i.e., 9 to 17 days from the first date of the preceding menstrual period),fertilisation is possible in the case of a normal woman at any timeduring the inter-menstrual period. He has “ seen cases where it hasoccurred just after or just before the period is due ”. He says that thispossibility is still greater in the case of a woman with irregular periods.The plaintiff’s evidence shows that her periods were irregular. Dr.Attygalle says (marginal page 373) that “ in the case of irregular .peopleit is not possible for anyone to say with any precision exactly when theovulation period is Though he says (marginal page 394) that “ it isalmost impossible ” for conception to take place if the intercourse was“ a couple of days before the onset of menstruation ”, his later evidence(marginal page 394) appears to restrict this impossibility only to normally'menstruating women. His observations on the evidence of Dr. Wick-ramasuriya (marginal pages- 383 and 384) seem to suggest that he' thoughta conception about August 9 was possible in the case of the plaintiff.Though Dr. Attygalle answers each question put to him with greaterconfidence than Dr. Wickramasuriya and without the caution andrestraint of the latter, it is at times difficult to reconcile the differentanswers given by him in the course of his examination.
Dr. Navaratnam thinks that in the case of a woman with a regularmenstrual. cycle fertilisation is impossible outside the “ 9th to the 17thday period ”, but he is prepared to agree (marginal page 425) that if theplaintiff had irregular periods she could have conceived even twenty-eight days after the last menstrual period. Dr. Thiagarajah says that
WUEYEWABDBNB J.—AUes and Alin.
827
it is possible for any woman—whether her cycle is regular or irregular—-to have a fruitful coitus at any time of the inter-menstrual period andadds (marginal page 886) that “ the safe period of Ogino and Knaus hasbeen proved to be a failure
Our attention has been invited to the following passage in MenstrualDisorders and Sterility by Mazer and Israel at page 70: —
" The assumption that ovulation does not occur before the fifteenthday of the expected flow, regardless of the length of the menstrualcycle, is now widely employed as a means of * natural contraception. . . This method of contraception has not achieved universalacceptance because it is increasingly apparent, as more and morebiologic data accumulate, that the reproductive cycle in the humanfemale is complex and variable. There is, for instance, some cir-cumstantial evidence to indicate that ovulation may occur more thanonce in a single menstrual cycle and that, even in the human, it may beevoked prematurely by coitus. These hypothetical concepts areseemingly supported by authentic clinical records of pregnancyfollowing instances of isolated coitus during any phase of the mens-trual cycle, even during menstruation. It is possible that a highdegree of sexual excitement during intercourse may evoke the produc-tion or the release of a sufficient quantity of gonadotropic hormone in6ome women to cause ‘ untimely ’ ovulation ”,
The authors conclude the discussion by. citing with approval theopinion of C. G. Hartman expressed in ‘ Time of ovulation in Women ’:—“ We still have a long way to go before we can brand as a falsehooda woman’s assertion that she conceived in the so-called sterile periodof the cycle ”.
I hold that the plaintiff could have had a fruitful coitus on August 9,1941.
As regards question (c) it has to be borne in mind that Dr. Wickrama-suriya is the only witness who attended on the plaintiff during herpregnancy and was present at the birth of the child. The other medicalwitnesses have to base their opinions on the evidence given by Dr.Wickramasuriya with regard to the observations made by him.
Dr. Wickramasuriya stated: —
that on October 23, 1941, “ the uterus was enlarged to about four
fingers’ breadth above the junction of the pubic bone ” and thathe considered that “ she was then within 14 and 16 weeks ofgestaton from the last menstrual -period—an average of 15 weeks.”-
that on December 17, 1941, he heard the foetal heart sounds which
are " normally heard about the 20th week but occasionally alittle earlier.”
that the child at the time of delivery was for all practical purposes
a fully developed child and that so far as he recollected itweighed lbs., that the skin was smooth, there was sub-cutaneous fat, the finger nails had developed beyond the tips,there was a. good growth of hair, the testicles had entered thescrotum, the baby cried lustily, took to the breast and suckedvigorously.
WUEYSWAKDENE J.—AUe* and Allot.
Now with regard to the observations made by Dr.. Wiokramasuriya onOctober 28 and December 17 it will be noticed that the facts observed byhim are quite consistent with a conception about August 9, as the childwould have been on the respective dates in the 15th week (104th day)and 23rd week (159th day) of gestation calculated from the first date of thelast menstrual period. Moverover, Dr. Wickramasuriya himself admitsthat “ there is some disagreement among authors of text books ” with•regard to the height of the uterus at various stages of pregnancy.
With regard to the observations at the time of delivery it has to benoted that in his evidence Dr. Wickramasuriya generally qualifies hisstatement that the child was fully developed by adding the words “ forall practical purposes Moreover, he does not state the weightprecisely but takes care to say that so far as he recollected the childweighed 6$ lbs. Dr. Wickramasuriya stated that he had a good look atthe child, as he knew “ the case would come to Court ” but added thathe did not adopt anyone of the “ various other special methods ” forascertaining whether it was a full term child. He admitted further thathe failed to measure the length of the child. In this connection it has tobe noted that according to Johnstone (Text Book of Midwifery, NinthEdition, page 93) “ most observers lay more stress upon length than uponweight Dr. Wickramasuriya gave his opinion that the child mighthave been conceived roughly about July 18.
In assessing this opinion it has to be borne in mind that Dr. Wickrama-suriya agreed with the view expressed in the following passage at page 47of volume 2 of Taylor’s Principles and Practice of Medical Jurisprudence(Ninth Edition), viz.: —
“ The most progressive stage of development is considered to beduring the last two months of gestation—the changes which thefoetus undergoes are greater and more marked at this than at anyother time. The general opinion is that an eight-months1 child is notwith any certainty to be distinguished from one born at the ninthmonth
The months mentioned in the above passage are clearly calendarmonths. Dr. Wickramasuriya agrees further that a child with anuterine existence of 252 days may be a fully developed child. A babyconceived as the result of a coitus on August 9, 1941, and bom on March26, 1942, would have had a uterine existence of nearly 228 days. Inmaking a comparison between such a baby whose date of conception isascertained by reference to the date of coitus with the cases referred toin the text books or mentioned in records kept in hospitals it should beremembered that the period of gestation in those cases is calculated withreference to the menstrual period. Therefore, for the purpose of com-parison the period of gestation of the baby conceived as the result of acoitus on August 9, 1941, should be calculated as from July 11, 1941.the first date of the last menstrual period and then the gestation period-would be 258 days or over eight calendar months. Such a baby ac-cording to Taylor cannot be distinguished with any certainty from a fullterm baby. (See also Taylor (Ninth Edition) Volume I. page 153.)
WUEYEWABDENE J.—AOet and Aiks.
Dr. Attygalle gives the date of conception as 270 to 276 days before thodate of delivery though most of the text book writers mention thelowest limit as 265 days. Dr. Attygalle would thus fix the period betweenJune 24 and June 29, 1941. He s&yB then that he would allow as theextreme limits of variability “ two weeks on either side ” (marginal page369). This would fix the latest date of conception according to him asJuly 13, 1941.
He says (marginal page 385) that he does not base his opinion “ on thefeatures only but on the general observations (Dr. Wickramasuriya) madeduring the pregnancy period ”. He says definitely that "it is impossiblein the case of a child conceived on August 9, for the uterus to have reachedup to four finger breadths above, the symphysis pubes on October 23 ”.
No importance can be attached to this expression of view as hesaya later (marginal page 387) that' he is unable to say what a " fourfinger-breadth space ” is and suggests to croBs-examiping Counsel that heshould ascertain it by measuring Dr. Wickramasuriya’s fingers.
The method of measurement adopted by Dr. Wickramasuriya wasundoubtedly unreliable for the purpose of forming a correct opinion. PaulTitus (The Management of Obstetric Difficulties, Second Edition, page 111)says:—
“ The height of the fundus of the utterus gives valuable informationabout the duration of the pregnancy, especially if measured routinelyat frequent intervals, as, for example, at each antepartum visit ”.
“ These measurements must always be taken from the fixed point ofthe upper edge of the symphysis pubes, by means of a pelvimeter orsimilar caliper, in order to have any degree of accuracy or scientificuniformity. It is futile to attempt any estimations of the period ofgestation or probable date of confinement by such methods as thenumber of “ finger-breadths ” above the symphysis, or below theensiform ”.
Moreover, even where the measurements are accurate any opinionbased on them must be qualified. De Lee and GreenhilL (Principles andPractice of Obstetrics, Eighth Edition, page 65) say: —
‘‘ Conclusions as to the duration of pregnancy based on the heightof the fundus above the pubes must be carefully qualified ….Naturally the accuracy of determining the duration of pregnancy isnot great, being disturbed by the inconstancy of the location of theumbilicus, the elasticity of the belly wall, intra abdominal conditions,the amount of liquor amnii, the size of the child, its position and otherfactors. The shape and size of the trunk alter uterine relations ”.With regard to the hearing of foetal heart beats on December 17,Dr. Attygalle says it is an “ impossibility ” in the case of a child conceivedabout August 9 (marginal • page 385), but immediately after he says,“ very rarely it may be possible. ” Later, when he is questioned aboutit, he recedes so much from the first view of “ unpossibility ’ that hecorrects Counsel by saying that his. earlier answer was ‘ ‘ not likely(marginal page 388). Still later he concedes that “ probably ” the heartbeats could have been heard on December 17.
230
wxJE^lsWARPE^fi JAUm snA AUw.
Dr. Attygalle accepts the -view expressed in the passage cited above fromTaylor’s Principles and Practice of Medical Jurisprudence and agrees thathe oannot “ say without very close observation the difference betweena child bom in the eighth calendar month ” and a child bom in the ninthcalendar month (marginal page 889). He says again that “ any boybora in the ninth or tenth month (lunar month) will have the samecharacteristics as a full term child ” (marginal page 401). He agrees(marginal pages 408 and 404) with the following opinion given, at page 98of Johnstone on Midwifery:—
“ That pregnancy followed by the birth of a fully developed ohildmay be prolonged or abbreviated is an observed fact …. fullydeveloped children have been recorded as being bom after gestation aashort as 240 days and as long as 314, 320 and even 331 days from thecommencement of the last period
Now the periods given by Johnstone are clearly periods calculated fromthe last menstrual period. Dr. Attygalle himself admits (marginal page400) that “ medical science and authorities have given the characteristicsof children reckoned from the notional date A child bom on March 26,1942, as the result of a coitus on August 9, 1941, would be a child with agestation period of about 258 days reckoned from the last menstrualperiod and could, therefore, according to Johnstone’s view be a fullydeveloped child.
Dr. Navaratnam says (marginal page 419) that the conception musthave been “ somewhere about the 19th June ” and" is prepared to allowtwo weeks “ this way and that wayThis would fix the period of
conception roughly between June 5 and July 3. Later he says moredefinitely (marginal page 429) that the child could not have, been conceived“later than the end of June”. Judging solely by the height of theuteruts observed by Dr. WTckramasuriya on October 23, he thinks that theconception must have been between July 1 and 19, but admits that theheight of the uterus is not determined solely by the period of pregnancyand is liable to individual variations. He concedes the foetal heartbeats could be heard after the 20th week. He says (marginal page 426)that with a normal monthly cycle and proper ovulation he would have nodifficulty in distinguishing between two children bom in the ninth calendarmonth if their periods of uterine existence differ by more than two weeks.When he is asked whether the position would be different if he was consider-ing the case of an irregularly menstruating woman his reply is, "in thecase of an irregularly menstruating woman we go by other data’’ .
Dr. Navaratnam adds to the complexity of the problem when he seemsto say (marginal page 429) that in the case of a woman with an irregularcycle, the period of gestation should not be determined from the lastnaenstrual period.
Dr. Tbiagarajah says the child “ forms the characteristics of full termchild in the 36th week ” of gestation reckoned from the last menstrualperiod and that “ the subsequent development of the child is in growthand weight not in characteristics ’’. He draws further an inference fromthe weight of the child that it had a premature delivery caused by therupture of the mepabrana which even according to Dr. Wickramasuriya
WIJBYEWABDENE J.—AUet and Alls*.
931
may have hastened the arrival of the baby by about ten days. Dr.Wiokramasuriya has stated in evidence that the weight of Hortense, thefirst child of the plaintiff, was " somewhere between six and seven, nearerseven ”. Dr. Thiagarajah says, that generally “ subsequent babies are.heavier ” and the fact that the child in question weighed less thanHortense tends to prove that this child. was bom prematurely. Hisposition is (marginal page 846) that, if the last menstrual period is -July 11to 14, it is impossible to say that a coitus on August 9 could not haveproduced this child ”.
The first defendant denies that he is the father of the child -on the soleground that he had no access to the mother at any time when the childcould have been begotten. Could it be said that "the medical evidenceproves that Joseph Richard could not have been begotten on August 9 ?To say so, the medical opinion must be clear and decisive. In this casethe opinions of the doctors are at times conflicting where they are nothesitating and doubtful. There are, moreover, the opinions of the textbook writers which throw a great deal of douht on the case of the firstdefendant.
It was pointed out by Counsel for the first defendant that the presentcase was distinguishable from Oaskill v. Gaskill 1 and Clark v. Clark *as in each of these cases no evidence was led to show that the wifehad a lover and the charge of adultery was based solely on theabnormity of the period of pregnancy. But the period in this caseis neither so low as in Clark v. Clark (supra) or so abnormally long , as inGaskill v. Gaskill (supra). The period of pregnancy here being 228 days'! theimprobability of Joseph Richard having been begotten on August 9, 1941,is comparatively slight. A child bom to a woman during the subsistenceof a valid marriage, cannot, I think, be made a bastard on such evidence asis given by the experts in this case. The fact that i during the materialperiod of time the plaintiff was on terms of intimacy with the seconddefendant does not of course entitle the first defendant to ask a Court tohold that he is not the father of the child, if he had access to the mother ata time when the child could have been begotten.
In Cope v. Cope 3 Alderson J. said: —
“ If you are satisfied that the husband had sexual intercourse withhis wife, the presumpton of legitimacy is not to be rebutted by itsbeing shown that other men also had intercourse with the woman.The law will not, under such circumstances, allow a balance of theevidence as to who is most likely to have been, the father ”.
That passage was cited with approved in Warren v. Warren *.
I hold that the first defendant has failed to prove that Joseph Richardis not his child.
There remains for consideration the question of damages. The damagesawarded in a divorce action are compensatory and not punitive. Th'etwo main considerations governing the award of such damages are (a)the actual value of the wife to the husband and (b) the proper compen-sation to the husband for the injury to his feelings, the blow to his marital
3 (1933) I Moody and Robinson 269.
* (1925) Probate 107.
1 (1921) Probate 425.* (1939) A. E. R. 59.
233WDEYEWABDENE J.—Allet and AXUt. .
honour and the loss to his matrimonial and family life (da Silva v. de 8Uva I)The District Judge says that “ the actual value of this wife to thishusband is nil As regards the second consideration for theaward of damages, there is no doubt that the second defendanthas betrayed the trust reposed in him by the first defendant.On the otherhand, the firstdefendant has acted very
indiscreetly. He encouraged the second defendant—a man of a differentrace and different creed—:to be on terms of closest friendship with hiswife, although the second defendant’s wife who is not a Purdah ladyrefrained from visiting his wife. He placed himself and his wife underobligation to the second defendant. He asked the second defendant tocall at V Merlton ” during his absence in Jaffna. He did all this thoughhe knew before he left for Jaffna that there had been ugly rumours aboutthe plaintiff (vide p. 26). He knew that his mother and plaintiff’s fatherhad spoken to plaintiff about these rumours, but he paid no heed to them.In hjs letter to his mother he said, “ All I ask is to be allowed to live myown life in my own way ”. There is, I think, in this case evidence ofcarelessness and neglect on the part of the husband in not determiningthe close association of the second defendant with the plaintiff. Thesecond defendant gets about Rs. 1,000 a month. He has to support hiswife and seven children. He has no property and no other source ofincome. He is in debt and his cheques have been dishonoured. Hiscredit is so low that he is compelled to go to Afghan money lenders forloans of money.
Taking into consideration all these circumstances and also the damagesusually awarded in our Courts, I think the second defendant has beenordered to pay excessive damages. As my brother thinks, however,that substantial damages should be given in view of the fact that certainsuggestions were- made against the first defendant in the District Court,I agree to his assessment of the damages at Rs. 10,000.
I have to refer to two incidental matters at this stage.
When Dr. Thiagarajah was being cross-examined the trial Judge put■ to him the question, “ You deny that you have been twisting medicalopinion to set up a theory ” ? The witness replied, “ Yes. I must em-phatically protest if any such suggestion is made ”. The Judge, there-upon, informed the witness that “ no such suggestion has yet been made ”.In the course of his judgment the Judge says about Dr. Thiagarajah: —
“ His cross-examination clearly shows his partisanship and how whendislodged from one point he took refuge behind another. I further holdthat being entirely biassed in favour of, the side which retained him he hasin this case tried to twist scientific facts ’ in order jbo accord with his ■theories which he thought would help the plaintiff’s case ”. Dr. Thiaga-rajah must have been upset by the remark made by the Judge when hewas under cross-examination. He has no doubt shown some irritationand impatience under the stress of a long cross-examination—thoughto a less degree than a medical witness called by the first-defendant.Some confusion has been created by the failure sometimes' to formulatewith precision the questions put to medical witnesses. This resulted» (1925) 27 N. L. R. 289 at 310.
CANNON J.—AUet and ABm.
often in those witnesses understanding -a question in a sense differentfrom that intended by the party putting the question. I have examinedthe evidence of Dr. Thiagarajah and I think I should say in fairness tohim that I have no doubt that he gave his opinion in good faith. I mayadd that I hold the same view with regard to the other medical witnesses.
When the first medical witness, Dr. Wickramasuriya, was givingevidence he was cross-examined by the Counsel for the plaintiffon an article contributed by Dr. Theobald to the British Medical Journal.Later, when Dr. Attygalle was under cross-examination, it transpired thatDr. Theobald was in Ceylon at the time having come here on a visit.Thereafter, the plaintiff filed a list of witnesses containing thename of Dr. Theobald and moved to call him as an expert. Actingunder section 175 of the Civil Procedure Code the District Judge refusedthe application. The Counsel for the plaintiff appearing'before us appliedfor leave to call Dr. Theobald even at this stage. Jjn the course of hisargument the Counsel for the first defendant stated that he would notobject to the application. Even if the first defendant opposed theapplication, I would have granted it in the exercise of the powers vestedin this Court under section 773 of the Civil Procedure Code, if the medicalevidence led in the case was less uncertain and vague and thus madeit desirable to admit the evidence of Dr. Theobald in the interests of thechild.
To sum up, I hold (a) that the first defendant has proved the chargeof adultery, (b) that the first defendant has failed to disprove the legitimacyof Joseph Bichard and (c) that the damages should be reduced toRs. 10,000. The District Judge will have to ^consider the questions ofcustody and alimony in respect of Joseph Richard.
I think that under section 612'of the Civil Procedure Code the seconddefendant alone should have been made liable for the costs of the firstdefendant. Such costs should not include any expenses incurred by thefirst defendant in placing before the Court the evidence of Dr. Attygalleand Dr. Navaratnam and in respect of the relative proceedings in Courtas these witnesses were called solely for • the purpose of giving expertevidence on the question whether Joseph Richard was a legitimate child.Each party will bear his or her own costs of appeal.
The decree of the District Court will stand subject to the modificationsindicated in the two preceding paragraphs.
Cannon J.—
I agree with the conclusions reached by my brother Wijeyewardene J.1 wish to add something about the medical evidence. The learned DistrictJudge thought, that Dr. Thiagarajah was a partisan and a biassed witness,and that- he had, in consequence, unconsciously strained scientific facts tosuit his theories. Mr. Nadarajah asked ps to review this criticism,submitting that, it was not deserved. The Judge based his criticism on theway Dr. Thiagarajah gave his evidence on three aspects of pregnancy, asregards which the Judge remarks: —
“ He has (perhaps unintentionally) twisted science in order tosuit his theories regarding irregular and regular menses, and on .thequestion whether there can be menstruation without ovulation. He
CANNON J.—A Ilea and AlUt.
984
first said that menstruation did not depend on ovulation. He thenchanged .that by saying ‘ You may get menstruation without ovulatiouand ovulation without menstruation and that for mestruation to takeplace ovulation may precede it ”.
“ When he realised that the insemination delivery period mightbe an important factor in this case, he tried to trim down the effect ofDr. Wickramasuriya’s evidence that the I. D. P. is from 265 to 270days
“It is a medical axiom that if the membranes rupture before theos dilates, it is called a ‘ premature rupture ', but Dr. Thiagarajah hadthe hardihood to suggest that the word ‘ premature ’ as used in thisconnection meant premature delivery, and had nothing to do with astage in the labour
On going through the record of the evidence of Dr. Thiagarajah and,indeed, of all the expert medical witnesses, one is struck by how frequentlyCounsel and the witnesses are at cross-purposes owing to the way in whichmedical terms were ambiguously used, not only in the questions andanswers but also by the writers of the scientific text-books, which werebeing frequently cited. The word “ menstruation for instance, hasdifferent meanings. Such bleeding may be ovulating (called “proper"menstruation) or an ovulating (called “ pseudo ’’ or “ abnormal ” men-struation). To the layman such words as “ gestation ”, “ fertilisation ” ,“ conception ”, may each convey one and the same idea; but to themedical profession each of these words may have more than one meaning.Because the different senses in which such words are used were notsufficiently emphasised in the text-books and in the evidence, confusion ofthought was bound to arise, and I am inclined to think that on thataccount false impressions were sometimes created.
The insemination delivery period of 265-270 days from coitus, given byDr. Wickramasuriya, was based on the assumption that ovulationoccurred about the fifteenth day of the menstruation cycle, butDr.. Thiagarajah was of opinion, like Dr. Wickramasuriya, that ovulationcould occur on any day of the menstruation cycle, in which case theinsemination delivery period could be from 250 days. It was in this waythat he appears to have “ qualified ” Dr. Wickramasuriya’s evidence.There was an apparent contradiction in terms, when Dr. Thiagarajah saidthat the insemination delivery period had no relation to the last menstrualcycle. The context of his evidence, however, indicates that he must havemeant that the gestation itself was unaffected by the menstrual cycle.The number of days of the insemination delivery period is admittedlycalculated with reference to the last menstrual period. Here the word" cycle ” has been loosely used for the word “ period ”.
Dr. Thiagarajah drew a distinction between what he termed a“ premature ” rupture of the membranes and an “ early ” rupture. Hesaid that an-untimely rupture was called “ premature ” when it occurredbefore the onset of labour, and “ early ” when it happened after suchonset, his point being that a premature rupture was likely to hasten birth,while an early one would not. This provoked the Judge’s commentquoted above.
Vaithaltngam and Gnanapathipillai
286
But the authors of “ Midwifery ” by Ten Teachers use the samelanguage as Dr. Thiagarajah to distinguish premature rupture before andniter labour has begun. And in an article on the subject in The Journalof Obstetrics and Qyneecology of the British Empire (Vol. 50, No. 5,published in October, 1943), Dr. D. S. Greig, the Medical Officer of aMaternity Hospital, reviews 320 cases and makes the followingdefinition: —
“Premature rupture of membranes is defined as having taken placewhen the rupture of the membranes precedes labour pains, recognisedand acknowledged by the patient
Apparently the degree of prematurity in relation to its effect is expressedby some medical men by the use of the words “ premature ’’ and “ early ”.
It is clear that Dr. Thiagarajah said that premature rupture of themembranes means premature delivery, but here again the context showsthat he did not intend this answer to be taken literally, for he had justbefore stated that such a premature! rupture “generally indicates pre-mature delivery ”. If for the word “ means “ he had said “ generallyindicates ”, he would have obviously have more accurately expressedwhat was in his mind.
The learned Judge’s criticism of Dr. Thiagarajah appears to arise fromcontradictions in the evidence due* not. to equivocation by Dr. Thiagarajahbut to the equivocal nature of the medical terms which were being quotedfrom scientific books by Counsel and sometimes put to the witnesses in aunivocal sense. This resulted in the evidence not only of Dr. Thiagarajahbut of all the expert medical witnesses being sometimes apparentlycontradictory and therefore confusing. Taking the record of the' evidenceof Dr. Thiagarajah as a whole and reading it in the light of the phraseolo-gical inexactitudes mentioned, I am left with the impression thatDr. Thiagarajah was giving a bona fide, though sometimes obscureexpression of his views on the scientific data.
Decree varied.