017-SLLR-SLLR-1990-2-JONATHAN-JOSPEPH-v.-JUNE-DE-SILVA.pdf
JONATHAN JOSEPHV.
JUNE DE SILVA
COURT OF APPEAL.
GOONEWARDENE. J. (P/CA) AND WEERASEKERA. J..
C. A. No. 593/79 F : D.C. COLOMBO 1316/M,
MAY 28. 1990.
Seduction on promise of marriage – Inference from failure of defendant to giveevidence – Corroboration. – Section 6 of the Maintenance Ordinance.
The plaintiff claimed that the defendant deflowered her on the promise of marriage butfailed to marry her. She was a virgin at the time of such defloration. The defendant failed togive evidence. The question was raised, apart from other defences, that it was not open totreat the failure to give evidence as corroboration.
Held :
A seduction case must be decided on the preponderance of evidence. The failure of thedefendant to refute on oath the testimony of the plaintiff given on oath can be treated ascorroboration depending on the circumstance of the particular case, e.g. where there is noevidence of sexual promiscuity on the part of the plaintiff.
Semble :
Further whether a fact is considered proved or not is dependant upon the belief ofevidence. Where on the uncorroborated evidence of the plaintiff if the Court is satisfied sheis speaking the truth, and the allegation of sexual intimacy seems probable such as to makeit prudent to accept its existence, it can be held to be proved depending on thecircumstances of the case.
Cases referred to :
Cracknell v. Smith [1960] 3 ALL ER 569. 571
Moore v. Hewitt [1947] 2 ALL ER 270
Harvey v. Anning (1902) 87 LT 687
Tikiri Menike v. Dingiri (1930) 3 C.A.R. 98
Jagadamba v. Boya [1947] 3 SALR 283
Grange v. Perera (1929) 31 NLR 85
Vedin Singhe v. Mency Nona 51 NLR 209
Karunasena v. The Republic of Sri Lanka 78 NLR 63. 66
The King v. Themis Singho 45 NLR 378
APPEAL from judgment of the District Judge of Colombo
Faiz Mustapha. P.C. with H. Withanachchi and A. Panditharatne for defendant-apellant.Romesh de Silva, P.C. with Harsha Amarasekera and Geethanka Gunawardena forplaintiff-respondent.
Cur. adv. vult.
July 17, 1990
S. B. GOONEWARDENE, J. (P/CA)
The plaintiff-respondent came to the District Court seeking to recover a, sum of Rs. 25,000 as damages on the basis that she, a virgin at the■ material time, had been deflowered by the defendant-appellant upon apromise of marriage, a promise he failed to fulfil.
Her case was that there was an association between herself and thedefendant, that this association developed to a point where thedefendant promised to marry her and that at her home on a daythereafter when she was alone and her mother was out of the house, hewas sexually intimate with her and ended her maidenhood. Shecontended that the defendant went back on his promise to marry herthus compelling her to come to Court. The defendant's position in theTrial Court had been largely an attempt to show that there was no suchpromise although there was also a denial of sexual intimacy.
At the conclusion of the trial the District Judge however accepted thecase of the plaintiff that there was a promise of marriage upon which shehad been deflowered and ordered the payment of a sum of Rs. 15,000as damages and hence this appeal.
At the hearing before us Counsel for the appellant while not fullyconceding that there had been a promise of marriage, submitted thatthere had been only what he termed a 'conditional promise'. Since hepresented no material in support of that position, suggesting a breach otany alleged condition, I would conclude that he was not arguing the caseof the appellant on the basis of an absence of a promise of marriage. Inany event I think the evidence in the case, that is the plaintiff's testimonyto that effect augmented by the contents of the letters written by theparties to each other, was more than adequate to hold that there wassuch a promise.
Instead, the direction of Counsel's argument was to assail what hecontended was the erroneous approach adopted by the District Judge.That approach was, in his submission, the wrong inference drawn fromthe failure of the defendant to give evidence from the witness box whichfailure the District Judge seemed to think (Counsel claimed) relieved theplaintiff of the need to place before Court evidence independentlycorroborating her case. Counsel contended that properly, in a case such
as this, there should have been independent corroboration in materialparticulars of the testimony of the plaintiff regarding the act of seduction,in the presence of which evidence only, could it have been said thatthere was, so to say, a case the defendant had to or was called upon tomeet. He contended therefore that the District Judge by his wrongapproach to the question which emphasised the failure of the defendantto give evidence, misdirected himself, thus resulting in his coming to thewrong conclusion in the case. In support, he relied strongly on thejudgment of the Queens Bench Division in CracknelI v. Smith (1) inparticular upon a passage which (at page 571) reads thus
“But here, if I am right, there was no corroboration at all, and, inthose circumstances, I am quite clear that the failure of the appellantto go into the witness box cannot of itself afford corroboration".
That was an appeal by way of Case stated with respect to an order madeagainst the putative father from whom payment of maintenance wassought in respect of a male bastard child. The facts there showed thatthe claimant mother had admitted sexual intimacy with the brother ofthe putative father as well, and the point taken on appeal revolvedaround the question whether there was adequate corroboration withinthe requirement of the Affliation Proceedings Act, 1957 (apparently arequirement akin to what is contained in Section 6 of our MaintenanceOrdinance that the evidence of the mother must be corroborated insome material particular by other evidence to the satisfaction of theCourt). In deciding against the mother on the appeal, the Court madethe pronouncement referred to earlier that the failure of the allegedfather in the circumstances of that case to get into the witness box couldnot of itself afford corroboration. Lord Parker, C.J., there makingreference to two earlier cases Moore v. Hewitt (2) and Harvey v. Anning
, apparently to distinguish them from the case before him, hadoccasion to comment that in both such cases there was evidence, unlikein the case before him, that the mother of the child was not intimate withor associating with anybody else. (Interestingly in a local case, that ofTikiri Menike v. Dingin' (4) it had been held that evidence which shows bya process of elimination that the defendant had exclusive opportunitiesof intercourse with the mother would tend to satisfy the requirement ofcorroboration).That factor of sexual promiscuity of the mother, as.Iunderstand the judgement read as a whole, played no small part ininfluencing Parker,C.J.,to take the view that in such circumstances thefailure of the appellant to go into the witness box could not of itself affordcorroboration. The conclusion he reached in these circumstances to befully appreciated must I think be viewed against the background of thestatutory requirement of corroboration in as much as the evidence musttend to raise the probability not only that the mother bore an illegitimatechild but also that the man sought to be made responsible to supportsuch a child by way of payment of maintenance is the father of suchchild.
Our attention was also drawn to the following passage (at page 284)from the judgment of Hathorn, J.P., in the South African case ofJagadamba v. Boya (5) –
"A seduction case is a civil case. Therefore it must be decidedupon the balance of probabilities, but the special rule that theevidence of the plaintiff requires corroboration applies. The processof balancing the probabilities takes place after all the evidence hasbeen led. If the balance is against the plaintiff she loses the case. If it isin her favour and there is no corroboration she also loses. If it is in herfavour and there is corroboration she wins".
How does one understand this passage ? I think one can do well inthat regard to refer to a statement from the judgment of Fisher, C.J., in alocal case, that of Grange v. Perera (6) containing reference to theRoman-Dutch Law authorities :
"It seems to be clear that under Roman-Dutch Law an action forseduction, where, as in the present case, the seduction was deniedon oath by the defendant cannot succeed unless the plaintiff'sevidence is corroborated. In Nathan's Common Law of South AfricaVol. Ill (1906), Section 1638 at page 1679, the law on the subject isstated to be as follows :-
' 1638. In cases of seduction, where the defendant alleges thatthe girl whom he is alleged to have seduced was not a virginat the time when carnal intercourse took place, thepresumption will be that she was a virgin, and the defendantmust prove that she had actually had sexual intercoursewith another man (XLVIII.5,4). On the other hand, thegeneral rule laid down by the Roman-Dutch authorities isthat in an action for seduction or affiliation (i.e. formaintenance of a child of whom the defendant is the father,or for the lying-in expenses of the plaintiff) the plaintiff'soath that the defendant is her seducer or the father of her
illegitimate child must, if the defendant on oath denies theimputation of seduction or paternity, be corroborated byevidence aliunde;that is, by extrinsic evidence (XLVIII.5,6Grot.,lnt.III.,36,8; Van Leewan's Roman-Dutch LawIV. ,37,6 ;2K 303). Failing such evidence aliunde, the man'soath will be entitiled to preference {Classon v. Durrheim,Buch 1868, p244) and the benefit of the doubt will be givenin his favour (Botma v. Retief, Buch 1876, p120)".
Counsel for the plaintiff-respondent referred us to several passagesfrom the authorities on similiar lines. It would suffice here to refer to oneof them. Maasdorp in his Institute of South African Law Book 3 at page178 states thus –
"If the man under oath in the witness box absolutely denies theseduction, the burden of proof will be on the woman to establish it,and if she adduces no proof aliunde to lead the Court to doubt theman's oath, the man's oath must under our law be taken inpreference to that of the woman's"
The rival submission of Counsel for the plaintiff-respondent thereforewas that the failure of the defendant-appellant to get into the witnessbox and give evidence on oath rendered it unnecessary for the DistrictJudge to look elsewhere for corroboration of the plaintiff's assertion. Iam of the considered view that this submission is a valid one. IndeedBasnayake, J.,(as he then was) in Vedin Singho v. Mency Nona (7)appears to have adopted a like view.
Whether a fact is considered proved or not is dependant upon thebelief of evidence. In socalled sexual cases, a rule of caution requiringcorroboration is applied, whether such cases be of a criminal or civilnature. The degree of proof required in criminal cases is known to behigher than in civil cases. Yet, even in criminal cases there have beeninstances where the view has been expressed that when the evidence ofa prosecutrix relating to a sexual offence is believed there can be aresultant conviction even though the kind of corroboration usuallyrequired may be lacking. In the case of Karunasena v. The Republic of SriLanka(8) Srimanne, J. (with Wijesundera, J. and Ratwatte, J. agreeing)(at page 66) said :
"In cases of this type one can hardly expect direct evidence ofcorroboration, but there can be circumstances which support theprosecutrix".
Srimanne, J. added –
“A proper direction (by the Trial Judge) would have been to tell theJury 'that in a rape case it is not safe to convict on the uncorroborativetestimony of the prosecutrix but that the Jury, if they are satisfied withthe truth of her evidence may, after paying attention to that warning,neverthless convict”.
The same principle had been adopted in the earlier case of The King v.Themis Singho (9).
If that be the position with respect to criminal cases then, in relationto sexual cases of a civil nature that principle should be capable of beingmore readily applied, so that any factor which makes an allegation ofsexual intimacy seem probable such as to make one prudently accept itsexistence should I think be made to have that effect depending of courseon the circumstances of the particular case. For example in certaincontexts it has been thought that an assertion of intimacy withoutrefutation by the man can have the effect of providing corroboration. Inlik'emanner as I see it, an allegation of intimacy upon oath without deniallikewise upon oath by the man must go towards meeting therequirements of the kind of corroboration which the law contemplates.
As pointed out by Hathorn, C.J., in Jagadamba v. Boya (Supra) thisbeing a civil case where the process of balancing of probabilities after allthe evidence had been led had to take place, I take the view that thefailure of the defendant to refute on oath the testimony of the plaintiffgiven on oath regarding sexual intimacy between them had the effect ofsustaining the case of the plaintiff sufficiently, so that the District Judgewas correct in placing the emphasis he did upon that aspect of thematter and coming to the conclusion that the case of the plaintiff hadbeen proved as required by law upon a 'preponderance of evidence',which expression, perhaps, rather than the alternative one of 'balance ofprobabilities', would highlight the significance of the absence of thedefendant's evidence on oath of denial of intimacy. I would thereforeaffirm the judgment of the District Judge and dismiss this appeal withcosts.
WEERASEKERA. J. – I agree.
Appeal dismissed.