125-NLR-NLR-V-41-BAKER-v.-FABURA.pdf
Baker v. Fabura.
487
1940
Present: Hearne J.
BAKER v. FABURA.
854—A. M. C. Colombo, 16,388.
Maintenance—Application by woman as wife, for maintenance on behalf ofherself and child—Marriage not proved—Order for maintenance of child—Maintenance Ordinance, s. 6 {Cap. 76).
Where a woman applied for maintenance as the lawful wife of thedefendant on behalf of herself and her child and where the Magistratefound that evidence of the marriage was insufficient and refused main-tenance for herself.
Held, that the Magistrate may order maintenance in respect of thechild on the footing that it was illegitimate if, in fact, the evidence forthe applicant satisfied him that the defendant was the father and thathe maintained the child within twelve months of the birth, although herapplication was not supported by an affidavit to the effect.
488
HE ARNE J.—Baker v. Fabura.
A PPEAL from an order of the Additional Magistrate of Colombo.
H y. Perera, K.C. (with him S. Sabapathipillai), for defendant,appellant.
. L. A. Rajapakse (with him M. I. M. Haniffa), for applicant, respondent.
Cur. adv. vult.
May 28, 1940. Hearne J.—
The applicant claiming to be the wife of the defendant asked formaintenance for herself and hep son. She said she was married to thedefendant in 1930, a*bout August, and that their son, Nazim, was bomten or eleven months later.
The Magistrate held that the evidence of marriage was not satisfactoryan^ accordingly he made no order for maintenance in her favour.
In his evidence the defendant admitted that he started keeping theapplicant as his mistress shortly after 1932 or 1933, and that when hewent to India he arranged for the payment to the applicant of Rs. 50per month. He did not deny that his association with her continued upto April, 1939.
The Magistrate, however, accepted the evidence of the applicant whichwas supported by one Saleem that she and the defendant had startedliving together in a tenement at Panchikawatta in 1930, that theyremained in the tenement for about a year or eighteen months, and thatit was during this period that Nazim was born.
The defendant admitted that Nazim was called Abdul Rahaman Nazimand it is significant that his first names are also Abdul Rahaman. Healso admitted that in letters addressed to the applicant he referred toNazim as “ our Nazim ”. In these circumstances and in the evidence ofSaleem the Magistrate found corroboration of the truth of the applicant’sstory and he ordered the defendant to pay for Nazim’s maintenance atthe rate of Rs. 50 per month. From this order the defendant appeals.
There is no doubt that, had the applicant come to Court on the footingof a former mistress and not a wife,, on the Magistrate’s findings of factwhich have not been seriously assailed, the appeal would have had to bedismissed.
The question I have to consider is whether the appeal should be allowedfor the reason that although the applicant asked for maintenance onbehalf of Nazim as the child of a married union, maintenance has beenallowed in the absence of proof that he was in fact the child of such aunion.u
In this connection my attention has been drawn to the MaintenanceOrdinance, section' 6 of Cap. 76, vol. II. of the Legislative Enactments ofCeylon. This section enacts that in the case of an application for anorder in respect of an illegitimate child, such an application shall not beentertained unless made within twelve months from the birth of suchchild, or unless it be proved that the man alleged to be the father of suchchild has at any time within twelve months next after the birth of suchchild maintained it or paid money for its maintenance ….
Public Service Mutual Prov. Assn. v. Com. of Income Tax.
489
If an applicant, on coming into Court twelve months after the birth ofher child, altered her position from that of a married woman to that of amistress, and had not averred in her affidavit that the defendant hadsupported her child during the twelve months next after its birth, thewhole inquiry would, in my opinion, have been abortive. For she wouldthen have initiated proceedings irregularly and have misstated the truefacts in order to cure the irregularity.
But in a case in which the Magistrate did not hold the applicant haddeliberately tried to mislead the Court—he did not reject the applicant’sevidence, though he was not satisfied there was a sufficiency of proof ofan actual marriage ceremony—and in which the applicant’s position,which was accepted by the Magistrate, had always been that the defend-ant’s support had continued from the days of their first association in 1930till April, 1939, I do not think that the appeal should be allowed by reasonof the provisions of section 6 of the Maintenance Ordinance, or on theground that the defendant was prejudiced in his defence.
Apart from the applicant’s claim to be the wife of the defendant, theissue of whether the defendant had lived with the applicant from 1930 oronly from 1932 (or 33) was, as it appears, fully appreciated by thedefendant and his Counsel.
The Magistrate answered the issue unequivocally in favour of theapplicant and I dismiss the appeal with costs.
Affirmed.