086-NLR-NLR-V-27-JUSTINA-HAMY-v.-GUNASEKARA.pdf
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Present: Jayewardene A. J.JUSTINA HAMY GUNASEKARA.591—P. C. Avissawella, 40,751.
Maintenance—Evidence of opportunity for intimacy—Corroboration ofmother'8 evidence—Ordinance No. 19 of 1889, e. 7.
Evidence of mere opportunity for intimacy is not sufficientcorroboration of the mother’s evidence in termB of section 7 ofthe Maintenance Ordinance.
Burbury v. Johnson1 followed.
A
PPEAL from an order for maintenance made by the PoliceMagistrate of Avissawella.
The facts appear from the judgment.
H. V. Perera (with him Sri Nissanka), for appellant.
October 21,1925. Jayewabdbne A.J.—
la this case the appellant has been condemned to pay Rs. 2*50per mensem for the maintenance of his illegitimate child. Heappeals against the order, and it is contended for him that theevidence of the child’s mother has not been corroborated in anymaterial particular, as required by section 7 of the MaintenanceOrdinance. The learned Police Magistrate says that there is suchcorroboration in three facts proved by the witnesses for theapplicant. They are: (1) that the mother told her father thatshe was pregnant to the appellant, the father informed the PoliceVidane, and at the latter’s request petitioned the Police Magistratealleging that the appellant had seduced his daughter one nightat the house of her uncle, Andris, where she was staying ; (2) thatthe applicant and the appellant were living in the house of theformer’s uncle, Andris, at the date of conception; and (3) that whenthe applicant became pregnant the appellant left the village.
As regards (1), the statement was made about five or six monthsafter she had become pregnant.
Now, it has been held in Ponnamah v. Sinnetamby2 by a Benchof three Judges of this Court, that section 7 must be read in thelight of section 157 of the Evidence Ordinance, and that a statementmade by the mother as to the paternity of her child would notbe corroborative of her evidence, unless it was made at or aboutthe time when sexual intimacy was continuing between the1 (1917) 1 K. B. 16. ‘8 (1921) 22 N. L. B. 395.
12(61)29
1925.’
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1925.
•Jayewab*DEKE A.J.
JustinaHomy v.thmaeekera
parties. The statement of the mother, which was made somemonths after conception, and some months after intimacy hadceased—the appellant left the village five months before the state-ment was made—cannot, therefore, be regarded as corroborationof her evidence in Court.
As regards (2), the learned Police Magistrate says that the PoliceVidane stated that the defendant was “found ” in Andris’ houseat the time the applicant was there. I do not know what the PoliceMagistrate means when he uses the word “found.” Does hemean that the appellant was living there, or came there for hismeals as the appellant admits ? The Police Vidane did say inhis examination in chief that the applicant was living in Andris’house for a long time, and that the appellant used to take his mealsthere and used to be seen there most of the time, but in cross-examination he said he could not swear that the defendant lived inAndris’ house. The appellant admits he used to take his meals atAndris’ house, but he denies he ever slept there. There might havebeen opportunity for intimacy, but that is not sufficient, as it doesnot give rise to any presumption in the circumstances of this case.The Police Vidane does not say that he noticed any familiarity inthe conduct of the parties. See the case of Burbury v. Johnson(supra) cited by appellant’s Counsel.
As regards (3), the appellant left the applicant’s village aboutthe time she became pregnant—that is, in October, 1924. Theapplicant does not say that the appellant left when he becameaware of her pregnancy. In fact, no point was made of his departureat this time by the applicant herself. It is an inference drawnby the learned Police Magistrate from a statement made by theappellant in his evidence.
His departure for his village at that time might be a suspiciouscircumstance, but it might also be merely a coincidence. Noconclusion adverse to him can be drawn from it.
A find, therefore, that there is no corroboration of the mother’sevidence in any material particular ,by other evidence, and forthat reason the appeal must be allowed, and the application formaintenance dismissed.
Appeal allowed.