GARVIN S.P.J.—Dona Carlina v. Jayakoddy.
1931Present: Gary in S.P.J.DONA CARLIN A v. JAYAKODDY.
893—P. C. Colombo, 14,408.
Cessation of sexual relations—Maintenance Ordinance, No. 19 of 1889,s. 3—Evidence Ordinance, s. 1ST.
A statement made by the mother of an illegitimate child as regardsits paternity, after the cessation of sexual relations with the allegedfather, is not corroboration of her evidence.
The conduct of the mother with reference to scenes created in thepresence of the respondent, after sexual relations had ceased, does notamount to corroboration of her evidence.
PPEAL from an order of the Police Magistrate of Colombo.
FI. T Perera, for appellant.
E. G. P. Jayatilleke (.with him Chelvanayagam), for respondent.
November 9, 1931. Garvin S.P.J.—s
This is an appeal from an order made under section 3 of OrdinanceNo. 19 of 1889 directing the appellant to pay a sum of Rs. 10 per mensemfor the. maintenance of a child alleged to be his illegitimate child. Theappellant denied paternity. It is urged on his behalf that the evidenceof the applicant and her witnesses is unworthy of credit and should nothave been accepted. But the main ground upon which the appeal ispressed is that the evidence of the applicant has not been corroborated.By section 7 of Ordinance No. 19 of 1889, it has been provided that “ no ordershall be made on any such application as aforesaid on the evidence ofthe mother of sueh child unless corroborated in some material particularby other evidence to the satisfaction of the Police Magistrate ”. A fewcircumstances spoken to by witnesses who purport to have observedthem have been given in evidence. But these neither individually no/collectively amount to such corroboration. They certainly do not showthat the relations between the applicant for maintenance and the appellantwere such as in any way indicates him as the father of the child.
The Police Magistrate has considered two statements made by the■applicant and recorded in the Police Information Book one marked PIand made on January 28, 1930, and the other marked P'2 made onJanuary 31, 1930, and has accepted the latter of these statements assufficient corroboration to satisfy the requirement of section 7. Headded “ Her own conduct at the house itself was corroboration ”.
The fact to be proved- in a proceeding of this nature is that a child wasborn to the applicant as the result of sexual relations with the appellant.Corroboration must relate to this fact. What is required is other evidencewhich shows or tends to show that the story of the applicant that.sexualrelations existed between her and the appellant as the result of whichthe child was born is true.
GARVIN S.P.J.—Dona Carlina v. Jayakoidy.
in this ease the only evidence relied upon as corroboration is a formerstatement made by the applicant herself. There is a judgment of thisCourt—vide Ponnammah v. Seenitamby *,—which is an authority for theproposition that a former statement of the applicant as to paternitywhich would be admissible under section 157 is corroboration of herevidence in a material particular by other evidence within the meaningof seotion 7 of Ordinance No. 19 of 1889. Theie may well be a difference ofopinion as to whether a former statement of a mother is corroborationof her own evidence within the meaning of section 7 of Ordinance No. 19 of1889. But the judgment in Ponnammah v. Seenitamby (supra) is by a-Bench of three Judges and is binding on me.
Nov/ the statements which are admissible under section 157 of the-Evidence Act are former statements relating to the same fact made (a)at or about the time when the fact happened or (b) before any authoritylegally competent to investigate the fact. Paternity is inferred from-the existence of sexual relations between the parties at or about the time-when the child was conceived. It would seem, therefore, that a formerstatement must relate .to the existence of relations at or about the timewhen the child was conceived and will only be admissible if made (a) ator about the time when such. conception took place or (b) before anyauthority legally competent to investigate the question.
The cases in which a legally competent authority is called upon to-investigate questions of paternity or the existence of sexual relations-between persons are not many nor is there as a rule much difficulty in-ascertaining whether evidence of- a former statement as to the same fact isadmissible on tbe ground that it was made at such an investigation.
The evidence which is tendered as corroboration usually consists offormer statements of the mother as to paternity which it is contendedare admissible under the first part of section 157. The statementscontemplated are former statements made contemporaneously with the-fact,. The fact being the existence of sexual relations between themother and the person charged at or about the time when the child was-conceived, former statements made by the mother at or about thattime would be admissible under section 157 and under section 7. if theruling in Ponnammah ■v. Seenitamby (supra) is right. But evidence is–often tendered of statements made by the mother several months afterconception had taken place and long after she became aware of hercondition and it is claimed that .these also ave admissible as statements-made during the continuance of sexual intimacy. For this propositionreliance is placed on the same case and on the following passage in thejudgment of Bertram C.J.—
“ Personally I feel a difficulty in following the pronouncement that astatement made by a woman within a few months after concep-tion is made ‘ at or about the time ’ of the material fact underconsideration, namely, the alleged sexual intimacy between theparties, unless of course it were shown that the sexual intimacycontinued- after conception and down to about the time of thecomplaint.”
> (1921) 22 N. L. B. 395.
GARVIN 8.P.J.—Dona Cortina o. Joyakoddy.
The material fact under consideration, it seems -to me, is not the exist-ence of sexual intimacy but the existence of such intimacy at a time whenpaternity can reasonably be attributed to the person alleged to be thefather of the child. However that might be, there is no indication in thejudgment as to .the evidence by which the continuance of sexual intimacy*' after conception and down to about the time of the complaint is to bedetermined
The conditions upon which a former statement of the mother may beadmitted being the proof of the continuance of sexual intimacy from thetime of conception up to about the time when such former statementwas made, presumably the existence and continuance of such intimacymust be proved by evidence proceeding from* others and independentof her. If such evidence is available it is the strongest possible corrobora-tion and the requirements of section 7 are satisfied and there is no necessityto admit the former statement of the mother. It would be anomalousto admit and act on the mother’s evidence as to “ the continuance of-sexual relations from the time of conception up to about the time when•the former statement was made ’1 as a foundation for admitting ' inevidence a former statement made by her as to existence of such relationsfor the purpose of complying with the requirement of section 7 as tocorroboration. If her evidence can be acted upon as to the “ continuanceof sexual relations from the time of conception ” the matter is at end-since the fact in issue is established. But there are cases in which it ispossible, to show that sexual relations did not or could not have continueddown to or about the time of the making of the statement which it issought to give in evidence. This is such a case. The Police Magistratefinds on the applicant’s own evidence that the statement PI was madeAfter the cessation of such relations. The statement P2 is clearly not inany sense corroboration of her evidence. There is nothing in the state-ment as to the paternity of the child or as to the existence of sexual-relations with the appellant. Moreover, it was not made to any authoritylegally competent to investigate the fact of paternity, or in the course■of any such investigation. Lastly, it remains to consider whether theJudge was right in treating the mother’s conduct as corroboration ofher own evidence. The conduct referred to refers to certain incidentswhich took place on January 31. The applicant waited on the street-outside the house of the appellant and as he came out on his way to workseized him and hung on to him. He went back to the house, the woman•still clinging to him and not leaving the house till she wasultimately removed by the police. There was evidence’ of similar conduct-on January 28 when she entered this house and had to be dislodged.
These incidents took place many months after conception and after■sexual relations, if they ever did exist, had on the applicant’s own evidenceceased. Any designing woman may create such a scene at the house-of the man she desires to accuse as the person responsible for her condi-tion, and it is manifestly unsafe to treat such conduct as sufficient corro-boration of her own evidence as to paternity.. Such evidence does notin my opinion satisfy the requirements of section 7 of Ordinance No. 19 of1889 as to corroboration. It is not necessary therefore to consider or
GARVIN S.P.J.—rDona Carlina «. Jayakoddy*
express any opinion on the general question how far if at all evidence of'the conduct- of the mother may be admitted and treated as corroborationof her own evidence as to paternity*
It is to be hoped that this and the other difficult questions to which 1have drawn attention will be settled by a decision of the Full Benchwhen a suitable opportunity occurs. Bo far as this appeal is concerned,it is possible to dispose of it on the ground that there is no corroborationsuch as is required by law of the evidence of the mother. The appeal is-allowed and the order of the Police Magistrate set aside.
DONA CARLINA v. JAYAKODDY