CARLINA NONA, Appellant, and DE SILVA, Respondent

053-NLR-NLR-V-49-CARLINA-NONA-Appellant-and-DE-SILVA-Respondent.pdf


NAG-ALIN GAM J-—Carlina Nona v. de Silva.
163
1948Present: Nagalingam J.
CARLINA NONA, Appellant, and DE SILVA, Respondent.S. C. 1,283—M. C. Galle, 4,890.
Maintenance—Civil or criminal proceedings ?—Balance of evidence—Presumptionof innocence.
Maintenance proceedings are really civil proceedings though the forumwhich determines the rights of parties is a Criminal Court. A maintenancecase must, therefore, be decided on the balance of evidence and not as a criminalmatter in which the innocence of the accused is to be assumed until the contraryis proved.
JsRPEAL from a judgment of the Magistrate of Galle.
M. L. 8. Jayasekera, for the applicant, appellant.
R. Gunaratne, for the defendant, respondent.
Cur. adv. vult.
January 5, 1948. Nagalingam J.—
This is tm appeal from an order of the Magistrate of Galle Hiamiagingthe application of the appellant for an order of maintenance against therespondent, the putative father of the applicant’s illegitimate child.
1S. C. Minutes of Oct. 23, 1945.
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NAGAL.INGAM J.—Carlina Nona v. de Silva.
The learned Magistrate concludes his judgment by stating that the-“ apph'cant has not proved beyond reasonable doubt her allegation, thatthe defendant is the father of the child for whom maintenance is calimedIt has been contended on behalf of the appellant that the learned Magis-trate has made a wrong approach to the adjudication of the appellant’scase inasmuch as it is clear from the passage quoted from his judgmentthat he' has looked upon these proceedings more in the light of a criminalprosecution rather than one in which the civil rights of parties areinvolved and that the Magistrate should have decided the case on thebalance of evidence and not determined the issues by reference to theprinciple underlying criminal law. that a case against an accused personshould be proved beyond reasonable doubt.
That maintenance proceedings are really civil proceedings though theforum which determines the rights of parties is a Cirminal Court has beenlaid down not, it is true, without previous difference of opinion in the caseof Subalia v. Kannangara1 where Bonser C.J. expressed himself thus :—“ It seems to me that the foundation of the jurisdiction of a PoliceCourt in these matters is the civil liability already existing—thisOrdinance simply provides a speedier process.”
The learned Chief Justice reaffirmed this view in the later case of Einav. Eraneris 2 in these words :—
“ As I said before, this Ordinance is not one dealing with a criminalmatter but it provides a speedy and less expensive way of enforcing acivil obligation which under the common law of the Island rests on thefather of an illegitimate child.”
This view of the nature of maintenance proceedings has never since beendoubted and, to use the language of the learned Chief Justice once again,maintenance cases have been decided “ according to the balance ofevidence ” and not “ as a criminal matter ” in which the innocence of theaccused is to be assumed until the contrary is conclusively proved.Drieberg J. in the case of Letchimi Pillai v. Kandiah 3 said :—
“ though this jurisdiction is in the Police Court a maintenance appli-cation is really a proceeding for the enforcement of a civil obligation.There are earlier cases where a different view has been expressed butthe correct statement of the law in my opinion is to be found in thejudgment of Sir Winfield Bonser C.J. in Subalia v. Kannangara andEina v. Eraneris ….”
The contention, therefore, on behalf of the appellant is well founded, andthe first question I have to decide is whether an order should be mad' onthis appeal or whether the case should be remitted to the lower Court foran adjudication having regard to the true principle underlying theseproceedings. As the learned Magistrate has not disbelieved the applicantor her witnesses, I think a final order can be made on appeal.
The applicant, who is a young woman twenty-one years of age, was atthe relevant dates a pupil in the Government Weaving School at Ratgama.The respondent would appear to be the sole instructor in charge of theinstitution. There were about fifteen pupils, all women students, andall of them bar the appellant who were from the village of Ratgama itself”1 (1899) 4 N. L. R. 121.* (1900) 4 N. L. R. 4.
(1928) 9 C. L. Rec. 191.
N AG ALIN GAM J.—Cortina Nona v. da SUva.
105
went to their respective homes for the noonday meal. The appellantattended the school from her village of Hagoda which is about two milesaway. She took her noonday meal, which either she carried with herwhen she went to the school or was brought for her by one James, in oneof the rear rooms of the school premises. The respondent himself usedto go to his house, which was stated by the appellant to be J mile away,and by the respondent to be £ mile away from the school. Accordingto the appellant, the respondent became intimate with her in March, 1946,and had sexual commerce with her in the rear room of the school on hisreturn from his noonday meal, when the school building was otherwisedeserted. There is also evidence that the appellant used to be accompaniedby a little girl about ten years of age and that that little girl also used totake her meals with the appellant but that on the occasions when thedefendant used to have sexual union with the appellant he used to sendout the little girl on errands to post letters at the post box a little distanceaway. The appellant further says that the respondent had been in thehabit ever since March, 1946, till close upon the time she ceased to attendschool, to have sexual union with her twice or three times a week. Shealso testified to the fact that the respondent had made a present to herof a ring bearing his initials in April, 1946, and that he also wrote to her aletter affirming the oral promise to marry he had made to her before heseduced her. She further alleged that in September, 1946, when herphysical condition disclosed unmistakable signs of her pregnancy, therespondent asked her not to attend school but to remain at home and totako some decoction from a vederala in order to cause an abortion butthat she declined to fall in with his plans. The appellant's mother alsobecame aware of her condition about that period, and on a statementmade by the appellant to her she questioned the respondent who deniedpaternity, whereupon petitions were sent to the manager of the school,Mr. P. R. Gunasekera, and to the Director of Education. While inquiriesinto these petitions were going on, the appellant was delivered of a childand she filed these maintenance proceedings shortly thereafter, and inconsequence the inquiries into the petitions sent to Mr. Gunasekera andthe Director of Education were abandoned. Apart from the mother,James gave evidence and stated that he had seen the appellant and therespondent talking to each other on the verandah of the school on oneoccasion and that he noticed no one else about the place and that he hadalso seen the respondent in the house of the appellant on about twelveSundays ; this latter fact was corroborated both by the applicant and hermother.
The letter the respondent was said to have written to the applicantwas not, however, produced, but the applicant explained her inabilityto produce it by stating that on one occasion when she was coming to theCourts with her mother the two of them were confronted by two men whoattempted to snatch away the child and that in the scuffle the letter whichshe had with her got lost. That there is a case pending against thosetwo men and the respondent in regard to the incident deposed to by theappellant is admitted by the respondent himself.
The defendant’s case was a complete denial and he suggested thatthis was a false case engineered by a cousin of his, the Village Headman of
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Gemmeddegoda. This headman did not give evidence although, he waspresent in Court, and it may, therefore, be assumed that there was someenmity between the headman and the respondent. It is also true thatthe applicant’s mother stated that she had asked this headman to assisther in regard to this case. While it may be true to say that owing to theanimosity the headman bore towards the respondent he may have beenprepared to assist the applicant in prosecuting this case, especially asthere were no males upon whose assistance the applicant or her mothercould have relied upon for that purpose, it does not follow that the head-man would have taken upon himself to fabricate a false case against therespondent.
It was suggested on behalf of the defendant that the applicant wasa woman of loose morals and that she had a couple of years earlier beenadmitted to hospital for a miscarriage. But this suggestion was com-pletely denied and her good character was spoken to by the principal ofthe previous school which she had attended at the date when she is allegedto have entered hospital.
The learned Magistrate has referred to two contradictions in thetestimony of the applicant and of her mother but which to my mind areunimportant especially when it is remembered that it is an old woman offifty-eight who gives evidence in regard to dates and the number ofletters which the daughter is said to have had with her.
The unlikelihood of any sexual act having taken place between theapplicant and the defendant was emphasised by reference to the fact thatthe Weaving School stands on the same premises as the DevapathirajaSchool which is in two divisions, one for boys and one for girls, and thatthe noonday interval in that school overlaps that of the Weaving Schooland that there would be a number of children about the place. Onedoes not require any great imagination to visualise the school childrenbeing away in the compound or in the vicinity of their own school, andit would not be difficult for a couple to secrete themselves in a room of theWeaving School, especially if the room is one that is set apart for theinstructor.
It is significant that an attempt should have been made to take awaythe applicant’s child on her way to the Courts. I cannot bring myself tobelieve that the applicant or those interested ir£ her would have gone tothe extent of having a ring made with the initial of the respondent, andthe ring that was produced furnishes very strong corroborative evidenceof the applicant’s case. Having regard to the probabilities and thebalance of evidence adduced in the case, it is not difficult to reach theconclusion that the respondent is the father of the applicant’s child.
There remains for consideration the quantum of maintenance thatshould be ordered. The respondent is in receipt of an income of Rs. 120a month, and the sum of Rs. 25 claimed by the applicant for the main-tenance of the child cannot be deemed to be excessive. I would thereforefix the maintenance at Rs. 25 a month and direct the order to be operativefrom the date of the application. The appellant will be entitled to hercosts both of this Court and of the Court below.
Appeal allowed.