Sri Lanka Law Reports
(1998) 2 Sri L.R.
COURT OF APPEAL
YAP A, J.
CA NO. 248/88
MC KURUNEGALA NO. 95108/M
MAY 7, 1997.
Maintenance – Unsatisfactory and contradictory evidence – S. 157 Evidence
Ordinance – Corroboration – Admissions of views expressed by certain Authors
– Considering material not available in the case to disregard the medical evidence.
It was several months after the 1st act of sexual intercourse that the motherof the respondent was told that she was expecting a child from a sexualrelationship she had with the appellant. It is not a statement made at orabout the time of the event as required by s. 157 of Evidence Ordinance.
"It was a serious error on the part of the Magistrate to have consideredthe mother's evidence as having corroborated the evidence of the appellant,without properly evaluating her evidence."
The acceptance of material from books was unwarranted and was notpermissible in law, the function of the Magistrate is to come to a findingon the material available in the case.
The evidence of the applicant appears to be very unsatisfactory andunreliable, in such a situation the question of corroboration does not arise.
Chandradasa v. Kumari (Yapa, J.)
Cases referred to:
Ponnammah v. Seenithamby – 22 NLR 396.
Tennekoon v. Tennekoon – 78 NLR 13.
Regina v. Pinhamy – 57 NLR 169 at 175.
Turin v. Liyanora – 53 NLR 310.
D. S. Wijesinghe P.C. with Ms. Dhammika Dharmadasa for defendant-appellant.
H. Wijetunge for applicant-respondent.
Cur. adv. vult.
March 31, 1998YAPA, J.
The applicant-respondent (hereinafter referred to as the applicant)claimed maintenance from the defendant-appellant (hereinafterreferred to as the defendant) a sum of Rs. 500/- per month asmaintenance to her child named Justin Jayawardena, alleging thatthe defendant was the father of the said child born to her on 16.12.84.After the inquiry, the learned Magistrate by his order dated 22.09.88decided that the defendant was the father of the said child and orderedhim to pay a sum of Rs. 150/- per month, as maintenance to thechild of the applicant. This appeal is against the said order dated22.09.88.
At the inquiry, the applicant and her mother gave evidence insupport of her claim for maintenance. The applicant in her evidencesaid that she lived with her parents in close proximity to thedefendant's house. According to her she had a "love affair" with thedefendant which started in the month of February or March, 1984.At that time she was 17 years old and was a student in grade 10.She said that on 14.05.84 defendant's sister Lalitha had invited herto the defendant's house to keep company with her, as Lalitha'sparents had gone to observe sil, since 14.05.84 happened to be theWesak Poya day. Applicant said that she went to the defendant'shouse on that day with the permission of her parents and on thenight of 14.05.84 she had slept in the hall, while defendant's sisterLalitha had slept in a room. According to the applicant, that nightthe defendant had come to her and called her to his room and hadsexual intercourse with her on the promise of marrying her. This wasthe first occasion she had sex with the defendant. Thereafter, onseveral other occasions, for about two or three months, the defendant
Sri Lanka Law Reports
(1998) 2 Sri LR.
had sexual intercourse with her. She said that they had not exchangedany letters but the defendant had given her a photograph and ahandkerchief, which she produced marked as E2 and E3, respectively.After 14.05.84 she said that her menstruation had stopped and therefore,she had realized that she was expecting a child. She said that it wasthree or four months later, that her mother came to know that shewas expecting a child and till then the defendant continued toassociate her. Thereafter, her mother had informed the parents of thedefendant, who had first consented to their association but later, theywere opposed to any settlement. Therefore, the applicant had madea complaint to the Police on 15.10.84 and the said complaint wasproduced marked E1. At the time she made the complaint to the Policethe defendant had stopped associating her. Applicant finally said thatafter a period of seven months, from the date of her first sexualintercourse with the defendant, on 16th December, 1984, she gavebirth to the child named Justin Jayawardena. In her cross-examination,seven contradictions were marked by the defendant's Counsel.
Applicant's mother Premalatha, in her evidence said that thedefendant stayed with his parents close to her house and she hadcome to know that there was an intimate relationship between thedefendant and her daughter, from a person who was in the habit ofvisiting the defendant's house. She said that her daughter used tovisit the house of the defendant to keep company with the sister ofthe defendant, on days when the defendant's parents were not athome. When she came to know of the relationship between herdaughter and the defendant, she had informed the mother of thedefendant who wanted her not to inform any one, but to be underobservation. This witness said that when she realized that her daughterwas expecting a child, she had questioned her daughter, who toldher that on 14.05.84, the defendant had ruined her and that she wasexpecting a child. Premalatha said that it was on 29th September,1984, that her daughter revealed this fact to her. Thereafter, thiswitness had informed the mother of the defendant who suggested toher, that they should take her daughter to a doctor, in order to findout whether she was expecting a baby. After the doctor had confirmedthat her daughter was expecting a baby, the parents of the defendanthad suggested that an abortion be done and that they would bearthe expenses. Premalatha finally said that since the defendant wasnot willing to marry her daughter, they had made a complaint to thePolice.
Chandradasa v. Kumari (Yapa, J.)
After the applicant's case was concluded, the defendant gaveevidence and denied having had sexual intercourse with the applicanton 14.05.84 and also denied having had sexual intercourse with herat any time thereafter. He said, in his house during that time, otherthan his parents, his brother and sister also stayed with him. Duringthat time his brother was 19 years of age and his sister was 20 yearsof age, and generally they were in the house at night. On 14.05.84he said that he was staying in his sister's house at Mawathagama,and that he had been living there since 31.12.81, as his sister'shusband had gone abroad and therefore, he had to stay there lookingafter their house and the boutique. According to him, after having goneto his sister's house, he had not gone back to stay with his parents,but had stayed at Ridigama since 12.02.87, as he had started abusiness. He further denied having given the handkerchief markedE3 and his photograph marked E2, to the applicant. His explanationregard to the photograph was that an extra copy of his photographtaken for the purpose of obtaining his passport had been in his album,and the applicant may have taken it while going through his album.He finally said, that when he came to know that the Police were lookingfor him over the applicant's complaint, he had gone to the MawathagamaPolice on 18.10.84 and had made a statement, rejecting the allegation.
Namasena, a clerk attached to the Kurunegala hospital producedthe bedhead ticket relating to the applicant, marked V7. Kirindiwella,a retired staff nurse of the Kurunegala hospital gave evidence andsaid that she had worked in the labour room on 16.12.84. Sheidentified her handwriting in the bedhead ticket marked V7, which shesaid was kept in the ward No. 9 of the hospital. She said that thebedhead ticket had been issued to one Manel Shanthi Kumari (ap-plicant), according to which she had given birth to a male child on16.12.84 at 7.56 p.m., weighing 5 pounds and 13 ounces. It was herevidence, that generally a child born in Sri Lanka whose weight wasmore than 4 pounds and 8 ounces, such a child was considered asa full term baby. She said that if the child was born prematurely, thechild would be sent to the special baby room. She finally said thataccording to the bedhead ticket marked V7, Manel Shanthi Kumari(applicant) had been admitted to the hospital at 4.55 p.m. on 16.12.84,the child had been born to her at 7.56 p.m. and she had beendischarged from the hospital on 17.12.84, which was the followingday.
Sri Lanka Law Reports
(1998) 2 Sri LR.
Dr. Nadesan, Judicial Medical Officer, Colombo South Hospital,gave evidence and said that he had 15 years' of experience as adoctor. After obtaining his M.B.B.S degree, he had obtained hispostgraduate qualifications in England. As a medical officer he hadthe experience of having attended to child deliveries. He said accordingto the bedhead ticket marked V7, applicant had been admitted tothe ward No. 9 of the hospital on 16.12.84 at 4.55 p.m. and she hadgiven birth to a child at 7.56 p.m. on the same date. The weight ofthe child had been recorded in V7 as 5 pounds and 13 ounces. Hesaid, according to Sri Lankan standards, the child was a full termbaby. He said according to the evidence of the applicant, she hadsexual intercourse for the first time on 14.05.84 and the child accordingto V7, had been born within seven months or 28 weeks thereafter.Generally, he said that a full term baby is born within a period of36 weeks and therefore, if the first act of sexual intercourse had takenplace on 14.05.84, and the child was born on 16.12.84, the child wouldhave a weight of about 3 pounds and his height would have beenabout 14 inches. In this case, the mother and the child had left hospitalon the following day, and this had happened since the child was ahealthy full term baby. Therefore he said, in this case having regardto the date of birth and the weight of the child, it was not possibleto say that the said child had been born, consequent to a sexualrelationship that had taken place on 14.05.84. He expressed the viewthat the applicant should have been at least pregnant by 14.05.84.
At the hearing of this appeal, one of the submissions made bythe learned Counsel for the defendant-appellant was that the evidenceof the applicant was unsatisfactory and complained about the failureon the part of the learned Magistrate to consider the contradictionsmarked, when assessing the applicant's evidence. There were sevencontradictions marked during the cross-examination of the applicant.The contradiction marked VI related to the period when her menseshad stopped after the first act of intercourse. When the applicant gaveevidence at the first inquiry on 18.07.86, which was later abandoneddue to the change of the Magistrate, she said that her menses hadstopped only after two months since her act of sexual intercourse withthe defendant on 14.05.84. However, when she gave evidence lateron 19.08.87 at the 2nd inquiry, she said that her menses did not takeplace after 14.05.84. The contradiction V2 was marked in relation tothe time, when the parents of the applicant came to know of applicant'ssexual relationship with the defendant. It was her evidence in Court,
Chandradasa v. Kumari (Yapa, J.)
that her parents came to know of this fact, three or four months laterfrom some one else. However, in her statement made to the Policeon 15.10.84, she had taken up the position that she informed herparents, one month before making her police statement, which wasabout five months after the incident. The contradiction V3 was markedsince the applicant said in her evidence, that she had mentioned tothe Police that the defendant was agreeable to marry her after anabortion, whereas, what she had in fact stated to the Police, wasthat she had requested the defendant several times to marry her, whichhe had refused to do. The contradiction V4 related to the stage atwhich the defendant had left the applicant. It was the evidence ofthe applicant that the defendant left her three or four months aftershe became pregnant. However, in her statement made to the policeshe had stated that in the 1 st month itself she informed the defendantabout her pregnancy and thereafter, he had left her and gone to hissister's place at Mawathagama. Contradictions V5 and V6 were markedon account of the contradictory position taken by the applicant withregard to the date on which the applicant's mother came to knowof her sexual relationship with the defendant. When the applicant gaveevidence in the first inquiry on 18.07.86 she had said that her mothercame to know of their relationship on 29.09.84, and that she in facthad told her mother of her pregnancy in the month of September.However, when she gave evidence on 30.09.87, she denied both thesepositions taken up by her in her evidence on 18.07.86. The contra-diction V7 was marked in view of the applicant's denial in cross-examination of the evidence initially given by her, where she statedthat she and the defendant exchanged gifts, meaning the photographand the handkerchief and it was thereafter, that her mother came toknow of their relationship.
Learned Counsel further submitted that the learned Magistrate hasdisregarded all these contradictions on the basis that there was nomaterial to show that the applicant was a person of loose morals andtherefore sought to disregard them. It must be stated, that this approachon the part of the Magistrate to accept the evidence of the applicantwithout considering the contradictions was erroneous. The Magistrateshould have carefully examined the contradictions, to see whether theywere material contradictions, which would have made the Court hesitantto act on the evidence of the applicant. A close examination of thecontradictions marked would clearly show, that the applicant has notbeen consistent in her evidence, on some of the important matters,
Sri Lanka Law Reports
(1998) 2 Sri LR
when she gave evidence. This lack of consistency on the part of theapplicant, was a factor that should have been considered by theMagistrate, before he decided to act on her evidence, for the reasonthat it cannot be said that some of the contradictions that were marked,had very little bearing on the question whether the court should haveacted on her evidence. Therefore in my view, there is substance inthis submission of the learned Counsel.
Another argument that was advanced by learned Counsel was thatthe Magistrate had erroneously considered the evidence of Premalatha,the mother of the applicant, as having corroborated the evidence ofthe applicant. According to the applicant's mother, she was informedof the sexual intimacy of the applicant and the defendant only inSeptember, 1984. In fact, there was evidence that she came to knowthat the applicant was expecting a child only on 29.09.84. Further,contradictions V5 and V6 marked in the evidence of the applicantrelated to the same subject matter. In view of the evidence of theapplicant and her mother Premalatha, it was apparent that Premalathahad come to know that the applicant was expecting a child severalmonths after the date of the first act of sexual intercourse. Accordingto Premalatha, it was on 29th September, 1984, that the applicanthad told her that the defendant had ruined her on 14.05.84. Therefore,it was submitted by learned Counsel that this item of evidence cannotin any way be considered as corroborative evidence. He furthersubmitted that according to section 157 of the Evidence Ordinance,any former statement made several months after the incident wouldnot amount to corroboration, since such a statement should be at orabout the time of the event, and therefore, a statement made fourmonths later will not fall under this section. This requirement has notbeen considered by the Magistrate before he came to the conclusionthat the evidence of Premalatha has corroborated the evidence of theapplicant. Further in the light of the material coming from the applicantand her mother Premalatha, it was on the 29th September, 1984,several months after the 1st act of sexual intercourse, that Premalathawas told that the applicant was expecting a child from a sexualrelationship she had with the defendant. Therefore, it would not bea statement made at or about the time of the event as required bysection 157 of the Evidence Ordinance. In the case of Ponnammahv. Seenitamby*statements made by the mother to third persons somemonths after conception, and some months after intimacy had ceased,was held not to be corroborated, as the statements were not made
CAChandradasa v. Kumari (Yapa, J.)83
at or about the time of the intimacy. Similar view was expressed inthe case of Tennekoon v. Tennekoon(S>. Therefore, it was a seriouserror on the part of the Magistrate to have considered Premalatha'sevidence as having corroborated the evidence of the applicant, withoutproperly evaluating her evidence. In the circumstances, this submissionof the learned Counsel should succeed.
Another submission that was made by learned Counsel for theappellant was that the learned Magistrate has failed to consider thestrong impact of the evidence of Dr. Nadesan on the veracity of theapplicant's evidence. It was the applicant's position that the first actof sexual intercourse took place on 14.05.84 and the child was bornto her on 16.12.84. However, according to the evidence of Dr. Nadesan,a child born on 16.12.84 could not have been conceived on 14.05.84,the interval being seven months or 28 weeks, having regard to theweight of the child at birth being 5 pounds and 13 ounces, the heightof the child being 18 inches and in addition, the mother and the childbeing discharged on 17.12.84, the following day. Dr. Nadesan wasof the view that the child born to the applicant was a full term babywhich would have required a period of at least 36 weeks to grow upto that weight and height. Learned Counsel submitted that the learnedMagistrate has not only failed to consider the strong impact of thismedical evidence on the veracity of the applicant's evidence, but inaddition the Magistrate has decided to disregard the evidence ofDr. Nadesan on the basis of certain views that had been expressedby two authors in two books published in U.K and U.S.A. Counselfurther submitted that the views of the two authors were wronglyadmitted into the case by the Magistrate in order to disregard theevidence of Dr. Nadesan. On this matter, it was the submission ofthe learned Counsel that the acceptance of such material from bookswas totally unwarranted and was not permissible in law, for the reasonthat the opinions of such authors have not been properly admittedbefore Court or for that matter placed before Dr. Nadesan for hisconsideration at any stage of the inquiry. Therefore such materialbrought into the case by the Magistrate himself would become inad-missible under the provisions of the Evidence Ordinance due to thegrave prejudice it would have caused to the defendant owing to theacceptance of such material by the Magistrate. In support of thisargument learned Counsel cited the case of Regina v. Pinhamy01where it had been stated that there was no authority in support ofthe proposition that Counsel is entitled to read to the Jury extracts
Sri Lanka Law Reports
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from treatises on medical jurisprudence which have not been properlyadmitted in evidence. In my view, this rule would apply with greaterforce to a Magistrate, whose function is to come to a finding on thematerial available in the case. Therefore, as submitted by Counsel,the Magistrate was in serious error to have considered material thatwas not available in the case to disregard the strong impact of theevidence of Dr. Nadesan on the veracity of the applicant's evidence.
If the learned Magistrate considered the evidence given byDr. Nadesan without disregarding it, as it was done in this case, itwould have made the evidence of the applicant most unacceptable.In addition as was referred to earlier, the contradictions marked inthe evidence of the applicant showed that her evidence was notconsistent. Therefore in my view, under these circumstances, theevidence of the applicant appears to be very unsatisfactory andunreliable. In such a situation the question of corroboration does notarise. (Turin v. Liyanora1*1) However, as referred to earlier the evidencepresented by the applicant in regard to corroboration cannot evenbe acted upon.
The learned Counsel for the applicant-respondent has strenuouslyargued that the order of the learned Magistrate should stand. However,having regard to the reasons set out above, I am unable to agreewith this submission. Therefore, I set aside the finding of the learnedMagistrate and allow the appeal.