060-NLR-NLR-V-16-CORNELIS-v.-LORENSIA.pdf
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Present: Ennis J.
CORNELLS v. LORENSIA.
78—D. C. Grille, 842.
Suit for rectifying register of births—Civil proceeding—Appeal—EvidenceOrdinance, s. 120—Non-access—Ordinance No. 1 of 1895.
A proceeding under Ordinance No. 1 of 189% for rectifying theregister of births is in the nature of a civil suit; it is only theprocedure of appeal which is to be considered on the lines of anaction under the Criminal Procedure Code.
The evidence of the husband or wife as to non-access is admissible- in a suit of this kind.
'J' BE facts appear from the judgment.
E. W. Jayewardene, for petitioner, appellant.—The child is clearlynot the petitioner’s child. The presumption in law would be thatthe child was bom after the full period of gestation of nine months.Taking the woman’s own evidence, the child could not be the childof the petitioner.
This proceeding under Ordinance No. 1 of 1895 is a civilproceeding, and the evidence of the husband and wife to provenon-access is admissible under section 120 of the Evidence Act.
(Wickremenayahe v. Per era.1) The application for rectification of theregister is of a civil- nature. The fact that the appeal is regulatedby the rules relating to District Court criminal appeals cannotaffect the civil nature of the application and inquiry.
A. St. V. Jayewardene.—The evidence of the husband and wife isinadmissible to prove non-access. There is no other evidence in thecase. The appeal is as in a criminal matter. Raise registration ismade criminally punishable. The policy of the law is to excludethe evidence of the. husband or wife in inquiries of this kind.Wickremenayrike v. Per era1 does not apply.
E. W. Jayewardene, in reply.
Cur. adv. vult.
September 10, 1912. Ennis J.—
This is an action under Ordinance No. 1 of 1895 for rectifyingregister of births. The name of the petitioner has "been insertedregister as the father of the child bom on April 29, 1911. Thrin the register were made on information received from
1918.
1 (1908) 11 N. L. B. 171.
1912.
Ennis J.
Cornelia v.Lorenaia
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In this case much turns upon the admissibility of certain evidencegiven by the petitioner and his wife. It has been argued that thecase is a criminal one, and that the evidence is inadmissible.
A consideration of sections 22 and 23 of the Ordinance makes itclear, in my opinion, that the action is in the nature of a civil suit,and it is only the procedure of appeal which is to be considered onthe lines of an action under the Criminal Procedure Code. Thisbeing so, I consider that the evidence is admissible under section 120of the Evidence Ordinance, and would follow the ruling of ChiefJustice Bonser in Perera v. Pody Singho,.1
Turning to the facts of the case, there is evidence to show that thepetitioner was at sea, and did not return to Colombo until September30. The evidence of both the petitioner and his wife show that heremained in Colombp for some weeks before returning to Galle, theplace of residence of the defendant. I consider it proved that he didnot reach Galle until October 10 at the earliest, viz., six and a halfmonths before the birth of the child. It is stated in evidence by thedefendant, the mother of the child, that the child was bom afterseven months. Taking this fact into consideration, and the otherevidence in the case, viz., that the child was born in the house ofSamel, in whose house the defendant was living as his mistress, thatwhen the child was vaccinated both Samel and the defendant gavethe name of Samel as the father of the child to the vaccinatingofficer, that the woman has been living with Samel for some years,I consider it has been shown that there was an impossibility of accessby the petitioner to the mother to bring the case under the exceptionin section 112 of the Evidence Ordinance.
I further consider it proved that the petitioner is not the fatherof the child, and that the register should be amended by the substi-tution of Samel's name in place of that of the petitioner.
Appeal allowed.
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i (1901) 6 N. h. R. 243.