C. NADARAJAH, Appellant, and H. I. OBEYSEKERA, Respondent

052-NLR-NLR-V-76-C.-NADARAJAH-Appellant-and-H.-I.-OBEYSEKERA-Respondent.pdf


268
Nadarajah v. Obeysekera
Present: Alles, J., and Weeramantry, J.
C. NADARAJAH, Appellant, and H. I. OBEYSEKERA,Respondent
S.C. 473/66 (F)_D.C. Kandy, 9219/M.R.
Delict—Injuria per consequentias—Rape of a married woman—Right ofthe husband to claim damages from the ravisher—Proof of actsof impropriety other than rape—Effect on order of Court inrespect of costs.
The plaintiff sued the defendant, a medical practitioner, for therecovery of damages for the humiliation and pain of mind causedto him as a result of the.defendant having wrongfully and unlawfullyhad sexual intercourse with the plaintiff’s wife in the consultingroom of the defendant.
Held, that where a person has forcible sexual intercourse witha married woman, her husband has a cause of action for damagesagainst her ravisher for the injuria caused to him. The presentaction, however, should be dismissed because forcible sexualintercourse was not established to the satisfaction of the Court. Avery high standard of proof is necessary to establish such a seriousallegation.
Held further, that although an act of rape was not proved, otheracts of impropriety referred to irr the plaintiff’s wife’s evidence didtake place. The defendant had made severe attacks upon theplaintiff and his wife on the basis that they had recklessly,maliciously and withovft foundation made allegations of improprietyagainst the defendant. In the circumstances, in regard to theimportant question of costs in a case like the present, each partyshould be ordered to bear his own costs of the action.
Ap
PEAL from a judgment of the District Court, Kandy.
C. Thiagalingam, Q.C., with K. Rajaratnam and S. C. Crossette-Thambiah, for the plaintiff-appellant.
S. Nadesan, Q.C., with H. L. de Silva, S. S. Basnayake, A. N.Jayawardene and C. A. Amarasinghe, for the defendant-respondent.
Cur. adv. vult.
ALL.ES, J.—Xadarajah v. Obeytelcern
20 D
March 27, 1971. Alles, J.—
The plaintiff instituted this action against the defendant forthe recovery of damages in a sum of Rs. 30,000 for the humiliationand pain of mind caused to him as a result of the defendanthaving wrongfully and unlawfully had sexual intercourse withhis wife, Ranee Nadarajah on 22nd June 1962 in the consultingroom of the defendant at premises No. 54, Victoria Drive, Kandy.After a keenly contested and protracted trial, the learnedDistrict Judge of Kandy dismissed the plaintiff’s action withcosts. The present appeal is from this order.
The foundation of the plaintiff’s action is for an injuria whichprimarily affects the wife but is regarded as mediately affectingthe husband—injuria per consequentias. This is an action whichhas been recognised in the Roman Dutch Law, particularlywhere persons stood in certain intimate relations with oneanother—husband and wife, father and child and betrothedpersons (Vide McKerron on the Law of Delict—6th Ed. pp 52,53). McKerron is of the view that in modern law this actionshould be primarily confined to the relationship of husband andwife, which is the most intimate of human relationships. Thisaction for an injuria has been recognised in Ceylon in SuduBanda v. Punchirala1 (1951) 52 N. L. R. 512 where Dias S. P. J.in distinguishing the case of Appuhamy v. Kirihamy * (1895) 1
N.L. R. 83 said that the latter case was not an authority “ eitherfor or against the proposition that under the Roman Dutch Lawa husband has a cause of action for injury caused to himselfagainst the defamer of his wife’s honour and chastity In SuduBanda v. Punchirala the Courts in Ceylon held, that the husbandof a married woman was entitled to bring an action for damagesagainst the defendant, who had committed adultery and wasliving in terms of illicit intimacy with his wife. A fortiori, wherea person has forcible sexual intercourse with a married woman,her husband has a cause of action for damages against herravisher for the injuria caused to him. It is, however, not everycontumelious act that will ground an action for injuria and Mr.Thiagalingam for the plaintiff-appellant conceded that in thiscase for him to succeed he had to establish that the defendanthad forcible sexual intercourse with the plaintiff’s wife or atleast that there was an attempt to commit rape. The main issueraised in this case was that the defendant wrongfully had sexualintercourse with the plaintiff’s wife. Anything less than forciblesexual intercourse or attempted sexual intercourse would be “ tootrivial an impairment of the plaintiff’s personality for the Courtsto take cognisance of; de minimis non curat lex ”—McKerron6th Ed. p. 53.
1(1951) 52 N.L.T1. 512.
-A 01138 (9/73)
(1395) 1 N. L. n. 83-
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The entire case for the plaintiff, therefore, centred roundone important question of fact, whether the defendant hadunlawful sexual intercourse with the plaintiff’s wife at hisconsulting room on the morning of 22nd June 1962.
The plaintiff married his wife on 2nd April 1956 and thedefendant, who at times material to this action was the VisitingPhysician of the Kandy Hospital, had treated the plaintiff’s wifeand also her mother when the latter fell ill and was hospitalisedat the Kandy Hospital on 31st December 1961. According tothe plaintiff’s wife on the night of 5th January 1962 thedefendant, having falsely represented to her that her motherwas dying, took her out in his car and tried to kiss her butshe rebuffed him. She did not mention this incident to anyoneas her mother was being treated by the defendant at the time.On 5th March 1962 the plaintiff’s mother-in-law left the hospitaland came to live with the plaintiff and his wife and continuedto be treated by the defendant until her death on 12th June1962.
The plaintiff’s case, supported by the evidence of his wife,is that the defendant called over at his house on 14th June tocondole with his wife ; that on that occasion the plaintiff’s wifetold him she wanted a medical certificate to be given to herschool where she was teaching; that the defendant asked herto come over to his consulting room to give her the certificate;that she went back to school (St. Scholastica’s School, Kandy)on 20th June 1962 and that as the Principal of the Schoolwanted a medical certificate to cover her absence the plaintiff’swife went with a fellow teacher Mrs. Jayamanne, in a car drivenby Mr. Jayamanne to the defendants residence at VictoriaDrive shortly after 8 a.m. on 22nd June. Continuing her storythe plaintiff’s wife states that after several other patients, whohad been waiting to consult the defendant had been attendedto she went to the consulting room alone; that after sheentered the consulting room, the defendant himself closed thedoor and wrote out a certificate ; that when she stretched herhand to take the certificate, the defendant caught her by thewrist and while still holding her hand, came across to where shewas standing and started to embrace and kiss her and thenput her down on. the floor and had intercourse with herforcibly; that thereafter he gave her the certificate, pattedher on the back, opened the door and let her out of the room.She further stated that she told Mrs. Jayamanne in the carthat the Doctor had misbehaved and later at school told herthat the Doctor had intercourse with her forcibly ; and on the
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same day she wrote to her husband, who was then on circuitat Batticaloa, requesting him to come home immediately.
The plaintiff, who was the Manager of the Singer SewingMachine Company at Kandy, had been out in the field and readhis wife’s letter at Moneragala only on the evening of 6th July1962 ; he then set out immediately for Kandy and reached homeabout 10 or 11 p.m. and his wife told him what had happenedin the consulting room on 22nd June. Thereupon the plaintiffproceeded to thrash his wife mercilessly ; and thereafter triedto contact the defendant, but failing to do so he telephoned thedefendant’s wife on 9th July and also wrote to the defendanthimself on 18th July demanding a reply within 10 days ; thaton 28th July the plaintiff received a letter from the Bishop ofKandy informing him that he (the Bishop) wanted to see himin connection with a letter written by the plaintiff to the defen-dant and asking him (the plaintiff) not to- take any action untilhe saw the Bishop ; that subsequently the plaintiff and his wifesaw the Bishop who informed them that the defendant hadseen him (the Bishop) and had offered to pay a sum of Rs. 10,000to the Church ; that the plaintiff was quite content and thoughtthat the humiliation suffered by him and his pain of mindwould be sufficiently assuaged if the defendant paid this sumto the Church but as this sum was not paid, the plaintiff did,on 25th September 1962, through his Proctor Mr. K. I. Pereraof Avissawella Send a letter of demand to the defendantdemanding the payment of a sum of Rs. 10,000 as damages.This action was instituted on 18th March 1963.
The plaintiff’s wife had also forwarded an Affidavit (D 2)dated 20th January 1963 to the Ceylon Medical Council chargingthe defendant with having taken advantage of her helplesscondition and committing a series of acts which were unworthyof a member of his profession ; and she prayed that a fair andimpartial inquiry be held into her complaint. She however didnot proceed with this complaint on the advice of her lawyersas, by then, the present action had been instituted.
The defendant denied the allegations made against him and,whilst admitting that the plaintiff’s wife did come to hisconsulting room to obtain a medical certificate on 22nd June1962, denied that he had intercourse with her on that day. Hisposition was that this was an entirely false claim made againsthim in an attempt to extort money.
Since the entire case for the plaintiff depended on oneimportant question of fact, it is necessary, in order toappreciate the Judge’s finding on this question of fact, to
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examine critically and closely, as far as it is possible, thecharacter of the plaintiff, his wife and the defendant andexamine their relationship with one another.
The plaintiff, Chandra Nadarajah, was a Hindu and a Tamiland after a successful carrier from small beginnings was atthe relevant time the Manager of a well established Companyat Kandy and in receipt of a comfortable salary of Rs. 1,000 amonth. His work entailed his absence from Kandy on circuitfor lengthy periods in the Eastern and Uva Provinces ofCeylon. At about the time of his marriage he sold his ancestralproperties at Matale and provided the money to his wife toenable her to purchase the shares of her sisters in their ancestralhouse situated at Peradeniya Road. His wife became, there-after, the sole owner of this property in 1958 and the plaintiffand his wife and child were residing in this house during therelevant period. The plaintiff met his wife, who was a Sinhaleseand a Roman Catholic, when she was an undergraduate at theCeylon University and married her soon after she graduatedin English, History and Economics. It was a love marriage andagainst the wishes of the parents of both parties. Soon afterthe marriage the plaintiff changed his religion and became aRoman Catholic, as he felt that it was not in the interests ofhis infant daughter that the parents should be of differentreligions, and was baptised at St. Anthony's Cathedral, Kandy.There is no doubt that the plaintiff was very much in lovewith his wife whom he described “ the apple of his eye Hiswife has been described as good looking and he must have hadqualms about leaving feer alone at Kandy for long periods whilehe was on circuit. He has been described as a jealous andpossessive husband.
The learned trial Judge has referred to hiin. as “ a ittah of adomineering nature and possessed of an aggressive temperament,a man who when he makes up his mind in a particular matterwould leave no stone unturned in order to achieve his object.He has also shown himself to be a man Who, in order tosupport a particular view he has formed, would not hesitateto exaggerate or even distort the truth, and even state thingsthat are deliberately false ”. A consideration of the evidencein the case would indicate that the observations of the learnedJudge are not without justification. The plaintiff’s wife, thougheducated and cultured, appears to have been completely underthe domination of her husband. For a long period prior to thefiling of the action and thereafter she suffered physicalviolence at the hands of the plaintiff. She was in a constantstate of fear and, being bruised and battered until she was blackand blue, appeared to be prepared to fall in readily with any
AJLL.ES, J.—Uadarajah v. Obeysekera
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suggestion of her husband. This relationship between the husbandand wife is, in my view, extremely important in decidingwhether Mrs. Nadarajah’s story of a rape is factually true orwhether she has been compelled to describe an incident whichnever took place. The learned Judge who had the advantage oflistening to her for three days formed the impression that shewas a reluctant witness and has observed that “ she no doubthad to say in public what no woman would like saying evenin private ” and poses the question whether her reluctance wasdue not only to that circumstance but also “ due to her havingto say what she said not of her own free will but becauseof some other force which was driving her to say so Havingregard to the domineering nature of her husband, was thestory of her ravishment in the consulting room of the defendanta calculated conspiracy between the husband and the wife toput the defendant into trouble and, as suggested by thedefendant, to blackmail him ?
On the other hand would the plaintiff, who was holding aresponsible position in a well known Company, in receipt ofa comfortable salary and a person of some standing in society,enter into a conspiracy with an educated and cultured ladywho was herself a graduate teacher and in receipt of a salaryof Rs. 575 a month, to make such a false and vile allegationagainst a professional man, knowing full well the humiliationand the publicity that a case of this nature entails, in order toextort money from the defendant ? It is also relevant in thissame context to consider the position of the defendant. He isa highly qualified Doctor, a specialist in Cardiology, and duringthe relevant period was the Visiting Physician at the KandyHospital and on the threshold of higher professional attain-ments. He enjoyed a lucrative practice at Kandy and livedwith his wife and children at Victoria Drive in a substantialhouse. Is it likely that he would commit an act of such grossindiscretion in his consulting room and jeopardise his entirefuture thereby ? These are problems that must necessarilyweigh with any Tribunal when it has to decide this difficultand complex question of fact and we are beholden to learnedCounsel on both sides for the assistance rendered to us in thecourse of the argument.
The evidence of rape depends entirely on the uncorroboratedtestimony of the plaintiff’s wife. This is of course a matter of suchgravity as to require a standard of proof commensurate with thegravity of the allegation. We have in mind in this connection therecent developments of the English law on the question whetherin civil matters such as this, proof beyond reasonable doubt
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is required as in a criminal case, but whichever way one approa-ches the question, it is clear that a very high standard of proofis necessary to establish such a serious allegation. Quite apartfrom this high degree of proof, a Tribunal has to guide itselfby the rules of evidence that in a charge of rape, although it isnot illegal to act on the uncorroborated testimony of a prosecu-trix, it would be unsafe to do so. According to the plaintiff'swife she went to the defendant’s consulting room with Mrs. Jaya-manne to obtain the medical certificate by prior arrangement.The defendant was fully dressed to go to the Hospital where hehad to report for duty- by 9 a.m. Before doing so he had to attend-to ten or twelve patients who were waiting to consult him. Itis admitted that he saw the plaintiff’s wife after he had examinedall his other patients. The plaintiff’s wife was also fully dressedready to go to school after obtaining the medical certificate.According to her, after her mother’s death ten days previously,she could not get over the shock and suffered from dizziness andfainting. She states that she was completely dazed at the timethe defendant put her on the ground ; she was powerless to resist;the defendant-had to remove his trousers completely in orderto commit tihe act of inter course^; he separated her thighs withhis legs ; there was penetration, and she felt her skirt and herthighs to be wet ; she was unable to raise any cries to be heardoutside by Mrs. Jayamanne and her explanation was that shewas too dazed to realise what was happening owing to hear weakcondition. If this story had been related in a criminal court, itis extremely unlikely that a reasonable jury would have acceptedher version of a forcible intercourse, and we find it difficult toact upon this version^The victim was a married woman, quitehealthy and in spite of her distressed condition it is inconceivablethat she could not have put up any kind of resistance to an actof forcible intercourse or that she could not have shouted to beheard by Mrs. Jayamanne. It is equally incredible that thedefendant would have taken the grave risk of committing suchan act in his consulting room and attracting the attention of hiswife and family who were in the house at that time. The learnedJudge has described her story as being improbable and it isnot possible for us to state that he was not justified in thisobservation.
The belatedness of the complaint of rape must next be consi-dered. The learned Judge has disbelieved the evidence of Mrs.Jayamanne and the plaintiff’s wife that a complaint of rapewas made by the latter to Mrs. Jayamanne on 22nd June inthe school room. I can understand the reluctance of Mrs. Nada-rajah to disclose this incident to anybody before consultingher husband but if an allegation of this nature is going to
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be made subsequently, it is pertinent to consider whether theallegation has been promptly made to a person in authority bythe aggrieved party. Even in regard to the statement toMrs. Jayamanne, what the plaintiff’s wife told her in the car wasthat the defendant had used criminal force on her, whichMrs. Jayamanne understood as a charge of rape. This wouldindicate, of course, that the plaintiff’s wife had made a complaintfairly promptly, but does it necessarily indicate that an act ofrape was committed ? Criminal force on a person may or may notamount to an act of rape. The plaintiff’s wife stated in evidencethat she mentioned to the Mother Superior, Mother Rita of whathad happened to her in the consulting room. Mother Rita wasnot on the list of witnesses for the plaintiff until a late stage andwas cited as a witness long after the plaint and the lists ofwitnesses had been filed. The plaintiff and his proctor did notwant to embarrass a nun in Holy Orders by calling her to giveevidence in Court although the plaintiff was prepared to rely onthe evidence of the Bishop of Kandy and Fr. Theophane Wick-remaratne, the Parish Priest of St. Anthony’s Cathedral, Kandy.The application to call Mpther Rita as a witness was madeafter the two latter witnesses were called and when Counselfelt that their evidence did not adequately support his case. Wethink, having regard to the discretion of the trial Judgeunder Section 175 of the Civil Procedure Code, the learnedJudge exercised his discretion properly when he refused theapplication of Counsel for the plaintiff to call Mother Rita as awitness.
No complaint of an alleged rape was made to the Police or anyperson in authority. The plaintiff was on circuit in the EasternProvince on 22nd June and according to him he was at Mone-ragala in the Uva Province on 6th July when he received aletter from his wife dated 22nd June, which had been readdressedto him, asking him to return to Kandy immediately. He statesthat he came to Kandy late on the same night and his wiferelated to him the story of the rape. The letter from Mrs. Nada-rajah to the plaintiff has not been produced. The learned Judgehas disbelieved the plaintiff and his wife that any such letter wassent, and has come to the conclusion that the plaintiff returnedto Kandy on 6th July after his normal circuit. This is a findingthat appears reasonable. Even if no mention was made in theletter about the consulting room incident, there was a note ofurgency in the letter, when the plaintiff’s wife asked him toreturn home quickly and as the learned Judge remarks, “ If hedid receive such a letter on the reading of which he decided toset out for home immediately, the natural and more likelycourse would have been for him to put the letter in the cal'.”
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Furthermore, when he heard his wife’s story “the plaintiff wouldhave realised the importance of such a letter and would havepreserved it. ” Again the means of communication in our countryare not so barren that the plaintiff’s wife could not have tracedher husband when she did not receive prompt attention to herletter of 22nd June and it was not impossible for her to havegone in search of her husband and informed him of the calamitythat had befallen her instead of waiting for his return on 6thJuly.
When his wife related her story of what had happened, theplaintiff’s first reaction was one of disbelief and he felt thatintercourse could not have taken place unless she was a consen-ting party, and he had to assault her and she had to swear on -the statue of the Sacred Heart, before he could convincehimself that the story of the rape was true. However, he wasstill not quite sure and states that he was in a changing frameof mind believing her at one time and disbelieving her atanother. Whenever he disbelieved her, his emotions got thebetter of him and he used physical violence on her. This stateof uncertainty appears to have clouded the plaintiff’s mind fora considerable period. He appears to have been satisfied thatthere was some kind of intimacy between his wife and thedefendant but he does not appear to have been certain thatthere was a rape. Of course if he thought that his wife was awilling party to any kind of intimacy he must know that therecould not be a case of rape. The documentary evidence seemsto support this attitude, of uncertainty. In his first letter writtento the defendant’s wife on 9th July (P 5) following a telephoneconversation with her he refers to the defendant’s“ misbehaviour ” and requests that the defendant should beasked “ to keep his hands off his property as he had put hishouse in order.” This language is consistent with the plaintiffsuspecting that the defendant and his wife were only carryingon a clandestine love affair. The next letter D 4 of 18th July wasaddressed to the defendant himself. In this letter the plaintiffhas made two false statements—that it has been brought to hisnotice that the defendant was on terms of, intimacy with his wifefqr the last six months and that his wife had confessed thewhole story to him. The plaintiff also warns the defendant notto have further dealings with his wife hereafter and proceedsto demand the necessary amends for causing unpleasantnessin his family affairs and pain of mind to him. The learned Judgeseems to think that this is a mild attempt at blackmail. In P 8and D 4 there is no reference to any act of forcible intercourseand I agree with the learned Judge that “ they both appearto be addressed on the basis that the plaintiff had discovered
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the existence of a clandestine affair between the defendant-and the plaintiff’s wife ; and that, whilst the plaintiff himselfhad set his house in order by taking steps to see that his wifewould not carry on in the future, an appeal is made to thedefendant’s wife to see that her husband is restrained, and thatthe defendant himself is warned not to have anything furtherto do with the plaintiff’s wife.” The first written intimation ofan allegation of rape in the consulting room was made overthree months later, when in D 5 of 25th September, the plaintiff’sproctor sent a Letter of Demand to the defendant for damagesin Rs. 10,000 for the pain of mind caused to him consequent onan act of molestation in the consulting room on 22nd June.This letter refers to an agreement to make a donation to theBishop of Kandy to stay legal action. I shall deal later in myjudgment with the steps taken for an alleged settlement beforethe ecclesiastical authorities. The allegation contained in D 5was denied by the defendant’s proctor by D 15 cf 8th October1962.
If the plaintiff’s first reaction to his wife’s story was one ofdisbelief and the documentary evidence indicated that until hesent the Letter of Demand he only thought there was aclandestine love affair between his wife and the defendant, is itsurprising that the learned Judge, who had the advantage ofwatching the demeanour of the plaintiff and his wife, did notbelieve that an bet of forcible intercourse took place in thedefendant’s consulting room on 22nd June ?
The defendant left Kandy on transfer to Colombo inNovember 1962. He was given several public farewells at Kandywhere he appears to have been a popular social figure and theplaintiff’s vindictive nature has been demonstrated when hesent a scurrilous postcard on 12th November (D 11) addressedto him to the General Hospital- at Colombo in which he falselystated that the defendant left Kandy in disgrace, adding furtherthat he has not finished with him yet. It was thereafter thatthe affidavit D 2 was prepared and sent to the GeneralMedical Council signed by the plaintiff’s wife.
This affidavit was signed by the plaintiff’s wife on 20thJanuary 1963, before the plaint was filed, and in that affidavitthe allegation of forcible sexual intercourse in the consultingroom was directly made. The plaintiff had earlier made repre-sentations to the Medical Council by letter, but since no responsewas made by the Council and, as he understood that anyaccusation against a medical man had to be made in the formof an affidavit, he consulted Proctor Wickramaratne of Kandy
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to have the affidavit prepared. According to the plaintiff heobtained the facts from his wife and gave them to Wickrama-ratne who put down the facts in the document using his ownlanguage. Wickramaratne states that he took down the factsin the shape of rough notes (which were not available at thetrial) and got his typist to prepare the affidavit. This affidavitwas produced by Counsel for the defendant and was not reliedupon by Counsel for the plaintiff, even though he was awarethat such an affidavit was in existence before the trialcommenced. Wickramaratne was the plaintiff’s proctor at thecommencement of the trial but revoked his proxy and wascalled as a witness by the plaintiff when an allegation was madeby Counsel for the defendant that the case of rape wasengineered by him to pay off a personal grudge against thedefendant. The plaintiff admitted that some of the factscontained in the affidavit were incorrect and not given by him.This position was contradicted by Wickramaratne who wasemphatic, that although the language used was his, all the factswere given to him by the plaintiff. Some of the corrections inthe affidavit were made by Wickremaratne, either when it wasbeing prepared or when it was signed before Latiff, the Justiceof the Peace. Wickramaratne states that, after the preparationof the affidavit, he asked the plaintiff to bring his wife to meetLatiff and on a Sunday -evening while he was going to thepictures at the Regal Theatre, the plaintiff and his wife cameto his house and then proceeded to Latiff’s residence to havethe affidavit signed. Mrs. Nadarajah has denied that she readthe affidavit before she signed it, but her denial has not beenaccepted by the Judge, who preferred to believe thatLatiff, who was a respected member of the Kandy bar, wouldhave read the contents to the affirmant before she signed it. I
I regret I am far from being satisfied that the affidavit D 2was prepared with that degree of care which a document ofsuch importance deserved. It appears to me to have beenprepared hastily and in a most slipshod manner and containsmisstatements of fact, distortions of the truth and exaggera-tions which seriously affect the plaintiff’s case. Wickramaratne,whom the plaintiff consulted before the affidavit was prepared,was a senior member of the Kandy Bar, a Justice of thePeace, a Vice President of the Law Society and Proctor ofexperience who had acted for the Magistrate of Kandy onseveral occasions. The learned Judge has described him as atanacious fighter and accepted his evidence that the factsset out in D 2 were given to him on the instructionsof the plaintiff, and after considering the entirety of hisevidence, has been satisfied that he has not engineered the
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case of rape against the defendant to serve his own personalends. This finding however does not, in our view, affect orexcuse the careless manner in which the affidavit has beenprepared. I am not impressed by Wickramaratne’s evidencethat since he was a busy proctor and as about 100 affidavitsare sworn daily at his office, they are not compared with theoriginal before they are sworn or affirmed, nor do I think thataffidavits should only be read over to illiterate people, andthat, as Mrs. Nadarajah was a graduate and an educated person,the necessity for reading over to her the affidavit did notarise. Whatever be the educational attainments of a declarantor affirmant, it is essential that he or she should be apprisedof the matters contained in the affidavit before it is signed.The plaintiff’s position was, that although the affidavit wasprepared on his instructions, it was never shown to him or hiswife by Wickremaratne at any time, and that they dependedentirely on Wickramaratne in regard to the manner in whichthe facts were stated in the affidavit. Wickramaratne also admitsthat Mrs. Nadarajah had no opportunity of reading theaffidavit before she went to meet Latiff. Wickramaratne couldnot have been unaware that the allegations made by theplaintiff and his wife against a professional man were of a veryserious nature ; that the allegations in the form of sworntestimony were being conveyed to a body which had the rightto remove him from the Roll of Doctors for unprofessionalconduct; that the allegations were being made by a culturedand educated married woman holding the responsible positionof a teacher and above all he had to be extra cautious becausethe Doctor against whom the allegations were being made wasone with whom, on his own admission, there was a talk ofpersonal animosity.
The affidavit commences by Mrs. Nadarajah affirming anddeclaring to the contents, when as a Roman Catholic sheshould have sworn to the contents. She denied that in regardto the January incident that “ she demurred owing to thelateness of the hour ; that the defendant put his arm roundher and made violent protestations of love ” (Para 6). In regardto Paragraph 7 she denied that she stated that when sherepelled the defendant’s advance “ this attitude only inflamedthe Doctor’s passions and he said that her mother’s life was inhis hands and unless she wanted to see her mother a corpseshe should be more accommodating and that when the Doctordiscovered that she was not in a frame of mind to yieldto his wishes he took her to the Hospital about 9.40 p.m.”She denied that she told the Doctor that “ she had to producea medical certificate to cover her absence from school for
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several days and that she was asked to come to the consultingroom any morning after 9 a.m.” (Paragraph 9). Paragraph 10commences with the words “ the following day that is on the22nd June” suggesting that the Doctor had met her theprevious day and asked her to come for the certificate. This isin the teeth of the evidence, since on Mrs. Nadarajah’stestimony the Doctor visited the house to condole with her on18th June, she went to school on the 20th and it was at theinstance of the Mother Superior that she went for the certificateon the 22nd. In Paragraph 12 she makes no reference to theletter sent by her on 22nd June to her husband and the language 'suggests that it was on his return from Moneragala in thenormal way that she apprised her husband of the incident.Although Paragraph 13 refers to the letter D 4, whicii mentionsa period of sexual intimacy for six months and a confessionby the plaintiff’s wife to the plaintiff, there is no such referenceto these matters in that paragraph and the plaintiff’s wife’sposition is that these statements in the letter D 4 are false.Paragraph 13 contains a statement that the plaintiff wrote D 4“ charging the Doctor with having taken advantage of herhelpless condition and depressed state of mind ”—matterswhich find no place in D 4. The statement in Paragraph 14 thatthe plaintiff went to the Hospital and “ accused the defendantwith having illicit relations with his wife ” is false because theplaintiff’s position was that although he went to the Hospitalwith that object, he could not meet the defendant as he wasavoiding him and hence the necessity of writing P 8 to thedefendant’s wife.
In view of these serious discrepancies, it is not surprising thatMr. Thiagalingam placed no reliance whatsoever on the affidavit.According to the plaintiff and his wife they never saw theaffidavit after the plaintiff gave instructions to have it prepared ;Wickramaratne states that the facts 'were given to him by theplaintiff and this has been accepted by the Judge ; the plaintiffadmits that he gave instructions to Wickramaratne on somematters which he thought his wife had said—-there is no evidencethat he was in a distraught state of mind at the time ; theplaintiff’s wife admits that although she stated the correct factsto the lawyers at the conference her husband and she had withthem, the persons present were responsible for setting out falsefacts in the affidavit to get her to perjure herself ; the plaintiffstates that although he gave the correct facts to Wickramaratneand the latter used his own language some of the facts statedtherein are incorrect and finally Wickramaratne admits that someof the facts given to him by the plaintiff have been denied bythe plaintiff’s wife. In all this confusion it is difficult to state
AXLES, J.—Xadarajah v. Obeysekera
2S1
with any degree of confidence who has been responsible for theintroduction of false matter in the affidavit. But, be that as it may,learned Counsel for the defendant submits, with considerableforce, that the contents of the affidavit illustrate quite clearlythat the plaintiff, who has taken responsibility for the contents,is not beyond exaggerating a story to serve his own purposes.I have already indicated earlier in this judgment, in dealingwith the character of the plaintiff, that I am in entire agreementwith the assessment of his character by the learned trial Judge.It seems to me that the story of a ravishment in the consultingroom was the result of a conspiracy between a domineeringhusband and a reluctant wife. I am not prepared however, tohold that blackmail was the object. Mrs. Nadarajah and herhusband have stated on oath that money was of no concern tothem ; there was no necessity for the Nadarajahs to resort toblackmail when they were comfortably well off and they werequite content if a donation was made to the Church as arecompense for the humiliation and pain of mind caused to them.But the plaintiff has proved himself to be an abnormal man anddetermined to prosecute his campaign against the defendant withvigour if not with venom. He was in a disturbed state of mindwhen his wife related the incident ; he gave way to his pentup feelings by using physical violence on her ; it maddened himto know that “ his wife had been handled by a cad ” who he wassatisfied was a “ ladies man ” and whom he accused of“ womanising ” in an open post card addressed to a publicinstitution. Having convinced himself that there was a clandes-tine love affair between his wife and the defendant, he jumpedto the conclusion that the incident that occurred in the consultingroom could not have taken place unless his wife was a consentingparty, but was not a£le to extract a confession from her to thateffect, even though he used physical violence on her. It is perhapson this basis, and in the hope of obtaining an admission from thedefendant and his wife, that in D4 he falsely stated that hiswife had been on terms of intimacy with the defendant for sixmonths and that she had confessed to him to that effect. Eventhe plaintiff’s wife conceded that she was probably thrashedbecause the plaintiff had come to the erroneous conclusion thatshe had been intimate with the defendant. The plaintiff haspursued the defendant with a purpose that can only be describedas tenacious. He went to Colombo to have the summons servedon the defendant who was about to leave the Island; hedeposited £ 15 with his lawyers to take steps to -have thesummons served on him in England; he wrote to the NuffieldFoundation in England to trace the whereabouts of the defendantIn England and the probable date of his return to the Island(D 12) ; he sent a telegram to the defendant’s mother-in-law
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ALLES, J.—Nadarajah v. Obeysekera
informing her of the date of trial and asking her to inform herson-in-law not to run away (D 9) ; and it was even suggestedthat he tried to contact the defendant’s daughters at LadiesCollege to ascertain the whereabouts of their father. The plaintiffadmits having acted like a madman at the thought that his wifehad behaved foolishly in going to the defendant to obtain amedical certificate after the January incident; regardless of herinnocence or guilt since he was not able to use physical violenceon the defendant he thrashed his wife ; he admits that he was ajealous husband and taxed his wife with infidelity ; he provedhimself to be a revengeful man when he tried to get his wifeto transfer her house in his own name because he wanted todeprive her of all the wealth she possessed and chase her intothe streets. When she refused to transfer the property beforethe Proctor, he felt humiliated, came home and thrashed her,had forcible intercourse with her to make her pregnant andchased her out of the house.
One might sympathise to some extent with the plaintiff forhis abnormal hehaviour brought about by a sense of grievance,genuine or otherwise, engendered in him as a result of hispossessive and. jealous attitude towards his wife- but hisbehaviour certainly lends colour to the suggestion of Counselfor the defendant that the plaintiff’s wife, battered andbruised by numerous assaults and acts of cruelty perpetratedon her, was a willing tool in the hands of her husband torelate an account of an episode which had magnified itselfbeyond its true dimensions in the warped and abnormal mindof her husband.-
In the final assessment of the plaintiff’s case there is the vitalquestion which always arises in cases of this kind where theappellate Tribunal has to decide how it has to deal with questionsof fact on which the trial Judge has already arrived at a decision.This is a case which largely depends on the impression which thetrial Judge has already formed in regard to the credibility ofthe witnesses. It is not a case in which inferences have beendrawn from a consideration of certain primary facts. The plaintiffand his wife were in the witness box for several days and thplearned trial Judge had ample opportunity of watching theirdemeanour and assessing their credibility. On several importantquestions of fact he has disbelieved the plaintiff and his wifeand given cogent reasons for his findings. He has disbelievedthem in regard to the January incident and preferred to acceptthe denial of the defendant ; he has disbelieved them in regardto the despatch of the letter of 22nd June and on several matterscontained in the affidavit D 2 he has not accepted their testimony.
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.He has characterised the evidence of the plaintiff as lacking infrankness and not being candid on several matters ; he hasobserved that the reason given by him for wanting the propertytransferred from his wife to him before Proctor Navaratnam asbeing unconvincing ; and he has held that he obtained the textof the telegram P 9 from Fr. Theophane Wickramaratne with anulterior motive. In regard to Mrs. Nadarajah, he has disbelievedher when she stated that she went to the consulting room toobtain the medical certificate by prior arrangement; that shewas lacking in frankness when she stated that she did not knowthat the defendant did his daily rounds at the Hospital; that itwas untrue that she was not aware of the contents of D 2 beforeit was signed ; and that her evidence in regard to the reason forcalling Fr. Wickramaratne was deliberately untrue. In view ofthese strong findings of fact, based as they are particularlyon demeanour and the impression created on the mind ofthe trial Judge, we see no reason whatever to disturb thesefindings.
Therefore when one considers the improbable nature of Mrs.Nadarajah’s story of a rape ; that her version is uncorroborated ;that her complaint is belated and not made to any person inauthority ; that her husband himself disbelieved her story andhad to thrash her to convince himself that it was true ; that theletters D 4 and P 8 contained false statements of fact; that thehusband wielded considerable influence over his wife ; that theaffidavit D 2 contained several misstatements of fact and exagge-rations and that the defendant had denied any sexual intimacy,it is not surprising that the learned trial Judge did not acceptthe version that Mrs. Nadarajah was the victim of an act offorcible sexual intercourse in the consulting room. Indeed, inour view, the surrounding circumstances would seem to suggestthat it would be extremely unsafe, if not dangerous, to act onher uncorroborated testimony.
Our agreement with the trial Judge’s finding that a case offorcible sexual intercourse has not been established to the satis-faction of the Court would be sufficient to dismiss the plaintiff’sappeal, but having regard to the nature of the allegations inthis case and the severe attacks made upon the plaintiff and hiswife on the basis that they had recklessly, maliciously andwithout foundation made allegations of impropriety against thedefendant, it becomes necessary for us to examine furtherwhether the plaintiff had no foundation whatsoever for theseallegations. This is pertinent, especially to the important questionof costs, which in a case such as this, must necessarily demandthe anxious consideration of this Court.. What was the necessity
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for the plaintiff’s wife to relate to her husband something thathappened in the consulting room to which she was a consentingparty if in fact nothing had happened ? Could it be that shedid not complain of a sexual assault but she did say somethingunpalatable which made the plaintiff think and honestlybelieve that something had taken place between his wife andthe defendant ? Has some kind of mild flirtation been exaggeratedto a case of rape in the suspicious and jealous mind of theplaintiff ?
We have given our most careful attention to the versionnarrated by the plaintiff and his wife. While no doubt we aresatisfied that the plaintiff’s wife’s account of a rape is one thatcannot be acted upon, the conduct of the plaintiff and his wifeis incomprehensible if nothing whatsoever had taken place inthe consulting room. The plaintiff’s wife, with her social andeducational background, could not have failed to realise thegrave risk she was taking to her reputation in the eyes of thepublic and in particular among her friends, her superiors, fellowteachers and the pupils in the school where she taught ; shewould have been conscious of the ordeal she would have to faceih the witness box in cross-examination, and as a wife and motherwould she have taken a step so serious to a Roman Catholic asto relate to her Bishop a story that was entirely fabricated ?While we think that she was pressed by the domineering natureof her husband to exaggerate a case of impropriety to one ofRape We find it difficult to believe that her story of improperconduct on the part of the defendant in the consulting room isentirely false.
In regard to the plaintiff, while no doubt he has displayed avindictive nature in his relations with the defendant, would hehave tarnished the reputation of his wife whom he dearly lovedand to whom he was devoted and adversely affected the welfareof his child for whose sake he changed his religion unless he wassatisfied in his own mind that something of an improper naturedid take pl&ee in the consulting room ?
The learned trial Judge, although he has accepted the defen-dant’s denial of an act of forcible sexual intercourse, has heldagainst hftn on certain vital matters. It is not disputed that Mrs.Nadarajah, in -the company of Mrs. Jayamanne did go to thedefendant’s house on the morning of the 22nd June ; that Mrs-Nadarajah entered the room'alone without Mrs. Jayamanne aftei*the defendant had seen all his other patients; that she remainedalone with the defendant for some time behind closed <$oors ;that the defendant gave her a medical certificate P 22 and thatshe came out of the room sobbing in a distressed condition. The
AJL1.ES, J.—Nadarajah v. Obeyselcera
285
evidence of the sobbing is admitted by the defendant. His expla-nation of the sobbing was that when Mrs. Nadarajah entered theroom she was in a depressed state and started sobbing at thethought of the mother’s death. The defendant then told her thatshe and her husband were partly responsible for it. There wasevidence that the mother fell seriously ill on 31st December 1961on the same day that the plaintiff’s wife, no doubt at the instanceof her husband, had advertised on rent the ancestral house atPeradeniya Road, which then belonged to the plaintiff’s wife. Thiswas the house in which the plaintiff’s wife’s mother, who was aheart patient, lived all her life and the suggestion of Counsel forthe defendant was that the mother’s illness was brought about byshock that she received when she learned that her ancestral homewas to be given on rent by the plaintiff and his wife. There is nospecific finding by the learned Judge that he accepts the defen-dant’s explanation for the sobbing and I find it difficult to accepthis explanation as being a plausible one. Mrs. Nadarajah’s motherdied 10 days previously ; she had been ailing for a considerabletime and her death was not something that was unexpected ;the defendant had met Mrs. Nadarajah on the 18th when he cameto condole with her and no such distressing scene occurred onthat occasion ; she had" sufficiently recovered to go to school onthe 20th and she was perfectly normal when she came to theDoctor’s consulting room on the morning of the 22nd for thepurpose of getting the certificate. I am therefore inclined tobelieve the evidence of Mrs. Nadarajah that the defendant wasguilty of impropriety behind the closed doors of the consultingroom which caused her to come out sobbing and which promptedher later to complain to her husband when he returned fromcircuit on the 6th of July, but that Mrs. Nadarajah has magnifiedthis in her evidence to an act of rape. I am fortified in this viewby certain findings of fact against the defendant, the relationshipthat existed between the defendant and the plaintiff’s wife andthe subsequent conduct of the. defendant.
Mrs. Nadarajah was not a stranger to the defendant. He hadtreated her before and after her marriage as a patient; she wasclosely associated with the defendant over her mother’s illnessand had visited the defendant at his consulting room in connec-tion with a case study which the defendant was making abouther mother’s case. The defendant was away at Nawalapitiya onthe day of the mother’s funeral but has remembered to send awreath to the Nadarajahs and had come personally later tocondole with Mrs. Nadarajah. On the Judge’s finding Mrs.Nadarajah did not visit the defendant on the 22nd by priorarrangement but apparently she preferred to obtain a medicalcertificate from the defendant rather than her own Doctor, Dr.Weeratunge.
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The position taken by Mrs. Nadarajah was that as soon asshe went up to the door of the consulting room with Mrs, Jay.a-manne, who was apparently taken as an escort, the Doctor lether in and closed the door leaving Mrs. Jayamanne outside. Mrs.Nadarajah was cross-examined on the basis that the defendanthimself used to escort a patient out and let another in. However,when the defendant gave evidence, he stated that he neverescorted his patients in or out and he left it to the discretion ofeach patient whether the patient should close the door or not.According to him the only occasion when he would shut thedoor himself was when it became necessary for him to examinea patient on the couch. If this position is correct, Mrs. Nadarajahwould have been aware of this practice and if she only came toobtain a medical certificate there was no necessity for her toclose the door. Why then did the defendant alter his normalpractice and close the door himself for no ostensible reason andleave the escort Mrs. Jayamanne outside ?
Finally there is the vital evidence of the Bishop of Kandyand Fr. Theophane Wickramaratne who were called by theplaintiff to speak to a proposed settlement before legal proceed-ings were instituted- After the receipt of P8 and D4 thedefendant went to seek the advice of a pastor of his Church,Canon Amerasekere who contacted the Bishop of Kandy as theNadarajahs were Roman Catholics, According to the Bishopthe defendant and Canon Amerasekere told him that the plaintiffhad accused the defendant of sexual intimacy with his wife, andthat there was no truth in the allegation and that the defendantbelieved that it was an attempt at blackmail, and wanted theBishop to speak to the plaintiff. The Bishop states that he con-tacted the plaintiff and his wife and he heard the versions of bothparties. He however admits that the defendant told him that he(the defendant) was satisfied that the plaintiff was trying toblackmail him and asked the Bishop to find out from the plaintiffwhether he would be satisfied if Rs. 10,000 was paid to theChurch. The Bishop admits having put this proposition to theplaintiff. According to the Bishop the defendant did not. makeany express promise to pay money but the payment of Rs. 10,000was suggested as a “test” to see whether “Nadarajah would'be satisfied if that money was paid to the Church as much ashe would be satisfied if the money was paid to him.” I find itdifficult to understand this story of a “ test ”. If Nadarajah’sallegations were entirely false the defendant was aware of it,and what was the necessity to suggest the payment of moneyfor the purpose of testing whether he was a blackmailer ornot? That a payment of Rs. 10,000 was contemplated" By the
ALLE S, J.—Nadarajah v. Obeysekera
2S7
defendant for the purpose of settling the case appears to beestablished. The documents P9 and P3 seem to suggest that thepayment was to be in the nature of a donation to the Church.P9 is the draft of a telegram prepared by Fr. TheophaneWickramaratne to be sent to the Bishop at Colombo. It wasdrafted at the instance of the plaintiff and reads as follows : —
“ Anxious to know whether donation received. Advise action.
Nadarajah.”
The reply P 3 from the Bishop reads “ Not received ”. The onlyreasonable inference to be drawn from this reply is that thedefendant offered a sum of Rs. 10,000 to the Church for thesettlement of the case. If, as I am inclined to think, thedefendant offered Rs. 10,000 to settle the case, it can only meanthat he wished to avoid publicity and humiliation for somethingimproper which took place in the consulting room which thedefendant was anxious should be settled out of Court. Thiscircumstance appears to be inconsistent with a background ofcomplete innocence on the part of the defendant. It may wellbe that the defendant, in view of his large and lucrative practicedid not think the sum of Rs. 10,000 was too much to pay for someindiscretion on his part and thereby avoid publicity, but whenthe plaintiff endeavoured to exaggerate the incident to one ofrape, he necessarily had to contest every issue.
To judge from the defendant’s indignant and forceful atti-tude in Court, as referred to in the next paragraph, he wasscarcely the man to offer a sum of Rs. 10,000 to stave off acharge by one whom he knew to be a blackmailer. If it wasblackmail and he, the defendant was perfectly innocent, it ismore likely that he would have resisted the allegation tooth andnail rather than, by negotiation through religious advisers,offered a substantial sum to put an end to this matter.
Before I conclude, I wish to comment on the evidence givenby the defendant. To several questions put to him by learnedQueen’s Counsel he gave the answer “ Rubbish ” or “Absolutelyrubbish ”. On one occasion he banged his fist on the table inanger. The learned Judge appears to have been stronglyimpressed by this action and characterised it as being the act ofan innocent man. I regret I am unable to share the views of thelearned Judge. The allegation of rape was not something thatwas sprung as a surprise on the witness for the first time inCourt and therefore there was no reason for him to lose hispatience or give vent to his feelings of seeming indignation. As
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a witness of some standing he should have been able to act withmore restraint. If this be the standard that has to be acceptedin deciding whether a witness is a witness of truth it would bea dangerous precedent and likely to create chaotic scenes inCourt when witnesses seek to protest their innocence.
Since we are of the view, that it is highly probable thatalthough the act of rape has not been proved, the other acts ofimpropriety referred to in the plaintiff’s wife’s evidence didtake place in the defendant’s consulting room, we think thefairest course would be, while dismissing the plaintiff’s action,to direct that each party should bear his own costs in appeal andin the court below.
Weeramantry, J.—I agree.
Appeal dismissed.