008-NLR-NLR-V-79-1-G.-W.-PEMAWATHIE-Applicant-Appellant-and-R.-A.-DHARMAPALA-Defendant-Responde.pdf
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MALCOLM PEREKA, .1. —-P< inawathie r. Dharmapala
1976 Present : Malcolm Perera, J. and Gunasekera, J.
G. W. PEMAWATHIE, Applicant-Appellantand
R. A. DHARMAPALA., Defendant-RespondentS. C. 507/74—34898/AMC Colombo
Maintenance Ordinance section 6—Whether evidence of the motherof an illegimate child essential requirement before order formaintenance.
The defendant-respondent was sued for maintenance for anillegitimate child born to one Vithanage Hema. The applicant wasnot the mother of the child and the mother did not give evidencebefore the learned Magistrate.
The relevant part of section 6 of the Maintenance Ordinance reads
"and no order shall be made on any such application
aforesaid on the evidence of the mother of such child unlesscorroborated in some materia] particular by other evidence to thesatisfaction of the Magistrate.
Held :That the wording of section 6 of the Maintenance
Ordinance did not mean that the evidence of the mother is anessential requirement before a Magistrate could make an orderfo»- the maintenance of an illegitimate child.
Case veferred to :
Karuppiah Kangany vs. Ramasamy Kang any. 52 N.L.R. 262.^^PPEAL against a judgment of a Magistrate's Court, Colombo
H. M. P. Herat for the applicant-appellant.
G. P. Mahikanda for the defendant-respondent.
October 29. 1975. Malcot.m Pf.rf.ra. J.
The point for determination in this appeal is whether undersection £ of the Maintenance Ordinance it is an essentialrequirement that the mother of an illegitimate child should giveevidence, before a Magistrate could make an order for themaintenance of such child.
In this case the defendant-respondent was sued formaintenance for an illegitimate child named Sudharma TikiriKumari born to one Vithanage Hema. Vithanage Hema, themother of this child did not give evidence. The applicant inthis case, in support of her case, produced the birth certificatemarked PI where the defendant-respondent has admitted thefact of his paternity. She also stated that in her presence thedefendant signed PI admitting paternity. The defendant hasstated in evidence, “ I have signed as the informant. I fvas askedto sign. One officer in the hospital asked me to sign when thechild was handed over. Without looking at the document Isigned. The officer gave me the book. I placed my signature. ”The learned trial judge has accepted the evidence of the appli-cant and disbelieved the evidence of the defendant. The trial
MALCOLM PEKEEA, J.—Petnawaihie v. Dha.rma.paia.S.'J
judge has stated, “ I am not impressed by the evidence ofthe defendant because he said that he simply signed the docu-ment relating to the birth register of the first child, merelybecause he was asked to sign. It is clear that the defendant isthe father of the first child too, but unfortunately the evidenceof the mother is not available to court and therefore in terms ofsection 6 of the Maintenance Ordinance, there is no sufficientmaterial for this court to hold that the defendant is the fatherof the child Sudharma Tikiri Kumari. ”
The relevant part of section 6 of the Maintenance Ordinance
reads thus, “ and no order shall be made on any such
application as aforesaid on the evidence of the mother .of suchchild unless corroborated in some material particular by otherevidence to the satisfaction of the Magistrate. ” In, my viewthis part of section 6 of the Maintenance Ordinance means thatwhere a mother of an illegitimate child gives evidence beforea Magistrate he cannot make an order for maintenance uponher evidence alone. The law requires that the evidence shouldbe corroborated in some material particular, however credit-worthy and reliable such evidence may appear to the Magistrate.I do not think the law ever intended to deprive maintenanceto an illegitimate child where the mother has not given evidence.There can be cases where the mother is dead or where she isso ill and unable to appear in court or where she is insane orwhere her whereabouts are not known. There can be caseswhere the person applying for maintenance on behalf of anillegitimate child may be able to adduce convincing evidencethat the defendant is the father of the child, such as, admissionsof paternity made by the defendant.
I find support for my view in the judgment of Swan J. inthe case of Karuppiah Kangany vs. Ramasamy Kangany, 52N.L.R. 262. In that case it was held that section 6 of theMaintenance Ordinance cannot be interpreted to mean that theevidence of the mother is an essential requiremnt, and thatwithout it a Magistrate would have no jurisdiction to make anorder for the maintenance of an illegitimate child.
I set aside the order of the learned Magistrate and allow thisappeal. I order the defendant to pay a sum of Rs. 50 per monthas maintenance for the child Sudharma Tikiri Kumary Rupa-singhe. The applicant will be entitled to a sum of Rs. 50 as costsin the Magistrate’s Court, and a sum of Rs. 200 as costs in appeal.
Gunasekera, J.—I agree.
Appeal allowed.