076-NLR-NLR-V-73-H.-B.-RATNAYAKE-Appellant-and-M.-RATNAWATHIE-and-others-Respondents.pdf
SAMERAWICKRAME, J.—Ratnayake v. Ratnairathie
419
1970 Present : Samerawickrame, J., and Weeramantry, J.
H. B. RATNAYAKE, Appellant, and M. RATNAWATHIE andothers, Respondents
S.C. 4/67—D. C. Anuradhapura, B/44S (Special)
Registration of births—Illegitimate child—Kntry in respect oj his birth—Rectificationby insertion of the name of the child's father—Permissibility—Interpretation ofstatutes—Maritn that general words have sometimes to be given a restrictedmeaning—Births and Deaths Registration Act (Cap. 110), ss. 21 (2) (3), 28 (1) (a),28 (1) (e), 28 (3).
Tho provisions of Soction 28 of tho Births and Deaths Registration Act donot empower the Court to mako an order adjudicating on an issue as to thodisputed patomity of an illegitimato child. In interpreting the Soction thomaxim that gonoral words in a statute hnve sometimes to be given a restrictedmoaning is applicable.
Appeal from a judgment of the District Court, Anuradhapura.
R. Dias Bandaranaike, for the 3rd respondent-appellant.
.No appearance for the petitioner-respondent.
Shiva Pasupali, Crown Counsel, as amicus curiue.
Cur. adv. trull.
July 26, 1970. Samerawickrame, J.—
The petitioner made this application under Section 23 of the Births andDeaths Registration Act, No. 17 of 1951, to have an entry in respect ofher illegitimate child Ranmenika rectified by the insertion of the name ofthe 3rd respondent-appellant as the father. The 3rd respondent-appellantdenied paternity. After an inquiry, the learned District Judge madeorder directing the birth registration entry to be amended as prayedfor by the petitioner. The 3rd respondent has appealed from thatorder.
Learned counsel for the appellant submitted that an application under8. 2S of the Births and Deaths Registration Act did not lie where there is adisputed question of paternity of an illegitimate child.
Section 21 (2) of the Act prohibits a registrar from entering in theregister the name of any person as the father of an illegitimate childexcept at the joint request of the mother and of the person acknowledginghimself as the father of the child and unless such person signs the registertogether with the mother ; or except on an order of a competent court-
420
SA.MERAWICKRAME, J.—Ttatnnyakc u. Ralnaicothie
Where no name has been entered at- the lime of the registration of thebirth, subsection (3) provides :—
“ Except upon an order of a competent court-, no person shall, afterthe original registration of the birth of an illegitimate child, enterin tho register of births the name of any person os the father of suchchild.”
This provision refers to an order of a competent court and.not to an order-obtained under the provisions of the Act. Its terms therefore do notpreclude an order authorising an entry.being made by a competent courtin proceedings other than those had under the Act. The application ismade in terms of 8. 28 and the relevant provisions are ss. 28 (1) (c) and28 (3) which are as follows :—
“2S (l)(c). A person whose birth has been registered (whether underthis Act or under any past enactment), or his parent or guardian, ora person aggrieved by any particulars in the entry relating to that birth,may make a .written application to the District Court of the districtin which tho birth occurred for an order directing—•
the insertion of the name of the father of such person, in any casewhere Euch name was omitted at the time of the, original entry ;
2S (3). On an application to the District Court, in accordance with thepreceding provisions of this section, for the amendment of an entryin a register of births, the District Court may, after due notice to the.Registrar-General, the appropriate registrar, and such, other- partiesand persons as the court may think fit, and after due inquiry, makesuch order, whether in terms of the application or otherwise, as justice'of the case may require.”
It will be seen that (a) apart from tho Registrar-General and theappropriate registrar, notice is to be given to such other parties andpersons as the court thinks fit ; (b) the court is required to make dueinquiry, but the mode or manner of such inquiry is left entirely to it;and (c) the court has to make such order whether in terms of theapplication or otherwise as justice of the case may require. The procedureprescribed is very summary and hardly suited for the determinationof the important and often difficult question of the paternity of anillegitimate child which is disputed. A disputed matter of paternity isappropriately to be determined in a properly constituted action. Thiswas the view of Dalton, S.P.J. in Samynathan v. Registrar-General-1
It is true that in maintenance proceedings questions of paternity aredecided in summary proceedings but the Maintenance Ordinance providescertain safeguards. An application in respect of an illegitimate childwill not be entertained unless it is made ■within 12 months from tho birth •of tho child, or unless it be proved that the man alleged to be the fatherhas at any time within 12 months next after the birth maintained the '
» (1935) 37 N: L.R. 2S9 at 291. .
SAMERAWICKRAME, J.—Ratnayake v. Ratnawalhie
421
child or paid money for its maintenance. There is also further provisionthat no order should be made on the evidence of the mother unlesscorroborated in some material particular by other evidence to thesatisfaction of the Magistrate. Under 8. 2S of the Births and DeathsRegistration Act there are no such safeguards.
There is no express requirement in the Act that notice should be servedon the alleged father. One may assume that a Court will direct noticeto such a person but in view of the terms of the provisions an applicationmay even be made to have the name of a dead man inserted as the fatherof a child. There is, in the Act, no time limit within which an npjfiicationlias to be made and indeed an application under s. 2S (1) (a) can only bomade after a child has become a major. Accordingly, if the procedureunder this section is applicable to a determination ofhe paternity ofan illegitimate child which is not admitted, an order may be made thatthe name of a dead person should be inserted as the father of the childwithout the alleged father having had an opportunity of being heard on an-application mam' years after the original registration of the birth. Theapplication in this matter is in fact made nearly twenty years after thedate of the original registration.
The provisions in s. 2S are general and it may at first sight appear thatan application of this nature would fall within them, but general wordsin a statute have sometimes to be given a restricted meaning. Theprinciple has been stated thus :
“ The maxim that general words are limited in their application isconstantly acted upon. The maxim itself is expressed by Bacon(Max. Reg. 10) : ‘For all words whothcr they be in deeds or statutesor otherwise, if they be general, and not express and precise, shallbe restrained unto the fitness of the matter or person’ ” (Dictum ofClcasby, B. in Gunr.esteutl v. Price1.)
Accordingly, provisions couched in general terms are given a restrictedoperation where it is necessary to do so in order to avoid injustice orhardship and are not extended to cover a matter in which they wouldoperate unjustlj' or harshly unless it was the intention of the legislaturemanifested in express words that they should apply to that matter.
I am unable to find in the provisions in s. 2S express words manifestingan intention that the question of disputed paternity of an illegitimatechild should fall to be determined upon an application made under them.One would incline to the view that it was not the intention of tholegislature that such a question should be decided by a procedure whichbeing very summary and not suited for a decision of an issue of thatnature may lead to an untoward harsh and unjust result.
I am therefore of the view that upon proper construction, the provisionsof s. 2S (2) do not empower the Court to make an order adjudicating-on an issue as to the disputed paternity of an illegitimate child.
1 1S7-5 Law Reports 10 Ex. 65 at 69.
•122
Appuhamy-v. Kcerula
la Karonchihamy v. Registrar of Births1 an order was made forrectification of an entry in respect of the birth of an illegitimate child bythe insertion of the name of the father but in that case the respondentadmitted paternity. With respect I agree, that where paternity ofan illegitimate child is admitted or not disputed an application unders. 2S will lie. Again a woman may obtain a finding by a competentcourt in other proceedings, for example, in a maintenance action, that aperson is the father of her illegitimate child and may thereafter mako‘an application for rectification of the birth entry. I am inclined to theview that in 6uch circumstances an application would lie though it isunnecessary to decide the question in this matter as the petitioneradmitted that 6he did not claim maintenance from the respondent-appellant..
There is one other matter to which I should like to refer. The petitionerstated that her daughter was now a teacher and that she made theapplication because the Education Department had called for therectification of the Birth Certificate. The direction by tho Departmentwas no doubt made on the basis that an application in terms of the Actwould lie.. Now that tin's Court lias held that such an application docsnot lie, I trust the Department will reconsider the direction.
I allow the appeal, set aside the order of the learned District Judgeand direct that this application of the petitioner stand dismissed. Therewas no previous decision on the. point raised, in this matter and theapplication was made in tho interests of a minor. I make no order forcosts of the proceedings in tho Court below but the appellant will beentitled to costs of appeal fixed at Rs. 105.
WeIcramaxtrv, J.—I agree.
Appeal allotted.