053-NLR-NLR-V-27-BANDARA-MENIKA-v.-DINGIRI-BANDA.pdf
( 282 )
1888.
Present: Jayewardene A.J.
BANDARA MENIKA v. DINGIRI BANDA.
775—P. C. Kandy, 15,917.
Maintenance—Corroboration of mother’s evidence—Circumstantialevidence.
In an application for maintenance the corroboration of themother’s evidence may be supplied by circumstantial evidence.
Where the applicant produced a document left in her possession,which was identified as belonging to the respondent,—
Held, that the production of the document amounted to asufficient corroboration of her evidence.
A PPEAL from an order of the Police Magistrate of Kandyj- A dismissing an application for maintenance in respect oftwo illegitimate children. The Magistrate, while believing the caseto be a true one, dismissed the application on the ground that themother’s testimony was not corroborated in material particularsby other evidence.
No appearance for applicant.
Soertsz, for defendant, respondent.
January 21, 1926. Jayewabdene A.J.—
This is an application for maintenance in respect of two illegitimatechildren. The respondent denied paternity. The learned PoliceMagistrate in a very careful judgment has held that, although hebelieves the case to be a true one, yet as the mother’s testimonyis not corroborated in material particulars by other evidence, theapplication must be dismissed. I fully appreciate the Magistrate’sdifficulty which appears from the analysis to which he has subjectedthe evidence. There was no appearance for the applicant in appeal,but I have considered the case and I have come to the conclusionthat there is sufficient corroboration of the mother’s evidence tojustify an order in her favour. In the first place, the Arachchi ofthe village says that he has seen the respondent in the applicant’shouse. In the second place, the applicant produces a documentwhich is marked “ M.” It is an informal writing on which therespondent took on rent a seven-cubit house at Rs. l-50 a monthfrom one Mudiyanse. She says that the respondent left it inher house, where, according to the evidence, the parties cohabited.The respondent says that he does not know in whose writing “ M ”
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is, and denies that it was given to him by Mudiyanse, the owner ofthe house. He produces a document “ N ” which he says is thelease. This is signed by the respondent. But in my opinion"M” and ** N ” are counterparts of the informal lease, “M,”signed by the landlord and given to the tenant (the respondent),and “N” signed by the tenant (the respondent) and given to thelandlord. The respondent must have obtained “N” fromMudiyanse, in whose possession, I have no doubt, it was. As theMagistrate observes, both “ M ” and “ N ” bear the same date,are witnessed by the same witnesses, and written by the samehand. Further, they are written on the same kind of paper, and allconsiderations point to their execution at or about the same time ;hut the learned Judge is not satisfied as to how it came into theapplicant’s hands. There might have been room for doubt on thispoint,if the respondent hadadmitted thegenuinenessof the document“ M ” and suggested that it had been obtained by the applicant insome surreptitious manner, but his denials with regard to it compelme to accept the account given by the applicant, that is, that itwas left in her house by the respondent, who was visiting her there.Her evidence o.n other points has been accepted, and there isno reason for rejecting her evidence on this point. The two factsI have mentioned afford ample corroboration of a circumstantialnature of the mother’s evidence. Corroborative evidence neednot be direct—it is rarely direct in cases of this kind—it may becircumstantial. It has been held in England where, as underour Ordinance, no order for maintenance under the Bastardy Actscan be made, unless “ the evidence of the mother be corroboratedin some material particular by other evidence/’ that the testsapplicable to determine the nature and extent of corroboration inthe case of accomplices are equally applicable to cases under theBastardy Lav s and to all other cases in which corroboration isrequired by Statute : Thomas v. Jones,1 where Bankes L.J. afterquoting the passage from the judgment of Lord Reading C.J.in Rex v. Baskerville2 reproduced in the local case of The King v.Perera.3 said :—
1926*
Jaybwxb-DP.sns A.J.
BandaraMenika v.DingiriBanda
“ I think, with the necessary alterations to fit that languageto this particular Statute (Bastardy Laws AmendmentAct, 1872), it is entirely applicable to a case like thepresent, and I would only add my emphatic agreementwith what the Lord Chief Justice said, that it would bein high degree dangerous to attempt to formulate the kindof evidence which should be regarded as corroboration,or to attempt any general definition of what constitutescorroborative evidence ” (p. 33) ;
1 (1021) 1 K. B. 22.8 (1916) 2 K. B. 668.
8 (1923) 26 N. L. B. 14S.
( 284 )
1986.
J AYE WAR-DENE A.J.
UaniaraMi mfco v.DingxriBanda
and Atkin L.J. said :—
“ What is meant by corroborative evidence is established now bythe decision in .Rea: v. Baskerville (supra) which I thinkmust be treated as an authority generally upon the meaningof corroborative evidence. It must be evidence which tendsto prove that the man is the father of the complainant’schild ; in other words, it must be evidence implicating theman, evidence which makes it more probable than notthat the respondent to the summons is the father of thechild ” (p. 44).
There is also the statement made by the applicant to Ukku BandaArachchi (Y) that she was pregnant to the respondent. This wasmade shortly before the second child was born. According to theapplicant’s evidence this statement was made whilst the intimacywas still continuing. If so, it would also amount to corroborationof her own evidence under section 157 of the Evidence Ordinance(Ponnamah v. Sinnatamby1). As the statement was in the natureof a complaint, it is quite possible that the parties were at arm’slength when it was made, and it would be safer to exclude itfrom consideration. Then there is the direct evidence of someneighbours, whose evidence, although it strongly corroborates theapplicant’s evidence, has not been relied on by the Magistrate on thegeneral ground that it cannot be trusted on its merits. If it hadbecome necessary, I should have been prepared to consider whethertheir evidence should not be accepted as sufficient corroboration.In view of what I have said above, it is, however, unnecessary todiscuss that evidence.
I would, therefore, hold that the mother’s evidence hasbeen corroborated, and that she has established the fact that therespondent is the father of her two children. As regards the elderchild, who is five years of age, the applicant had also to prove that thatchild had been maintained within twelve months of its birth. Theapplicant says the child has been so maintained. Her evidence onthis point need not be corroborated. But as the respondent hasbeen found to be the father of the second child, who is only a fewmonths old, it is not difficult to infer that he must have maintainedthe first child till his separation from the mother.
I hold, therefore, that the applicant has established the respon-dent’s liability to maintain both the children. The appeal is allowed,and the case will go back for the Police Magistrate to fix the amountof maintenance to be paid by the respondent, in respect of eachchild.
I would also allow the applicant Rs. 10‘50 as costs of theseproceedings.
Appeal allowed.
1 >1921) 22 N. L. B. 395.