028-NLR-NLR-V-04-lYANOHAMY-v.-CAROLIS-APPU.pdf
( 78 )
1900.July 6.
IYANOHAMY v. CAROLIS APPU.
P. G., Bala-pHiya, 20,312.Procedure—Ordinance No. 9 of 1895, e. 9—Oath proposed by complainant—Refusal of defendant to take such oath—Right of Magistrate to adjudgeagainst defendant without hearing witnesses.
If under section 9 of Ordinance No. 9 of 1895 a defendant refusedto take the oath proposed by the complainant, a Magistrate cannotdecide the case against the defendant without hearing the witnessescited. He should record the fact that the defendant refused to takethe oath and, when he comes to weigh the evidence heard, he may takethat fact into consideration.
I
N this case of maintenance, after the Police Magistrate hadheard several witnesses for the applicant, the applicant
informed the Court that she was willing to allow the case to goagainst her if respondent would swear on the Jataka Pota, a bookheld sacred by the Buddhists, that the children are not his. Therespondent agreed to take that oath.
The Police Magistrate then ordered as "follows: —
“ As this is a case sb much of a civil nature as of criminal, I“ allow the oath under section 9 of Ordinance No. 9 of 1895.
“ Bespondent to swear on the full-moon day on the 12th instant in“ the Totagamuwa Vihare, keeping his hand on the Jataka book,“ that he is not the father of the applicant’s two children. If he“ does so, the applicant’s case will be dismissed. The interpreter'* will administer the oath. Case to be mentioned on 13th.”
On the 13th June the interpreter reported that the priest of thevihare refused to allow the swearing to take place within theplace where the images of Buddha were kept, but that the swear-ing might be done in the outer verandah or at the dewale. Therespondent, however, refused to swear anywhere than inside thevihare.
The Magistrate thereupon ordered the respondent to pay to theapplicant Bs. 4 a month as maintenance, being of opinion that therefusal of the respondent to swear at the outer verandah of thedewale was an obvious attempt to evade the spirit of the ordermade by him.
The respondent appealed.
Van Langenberg, for appellant.
A. Drieberg, for respondent.
( 79 )
Eonseb, C.J.—
In this ease the Magistrate has taken a mistaken view of theOrdinance No. 9 of 1895. The appellant was defendant in amaintenance application. The mother of two children sought toobtain an order of maintenance for them, alleging that theappellant was their father, and that he neglected to maintainthem. She gave evidence and, after some witnesses had beencalled, the woman said that she was willing to 'allow the case togo against her if the -defendant would swear on. the Jataka- Potathat-the children were not-his. The Magistrate"recorded that thedefendant was- willing to take this oath, and made the followingorder:—“ The defendant to swear on full-moon day, the 12th instant,“in the Totagamuwa Vihare, keeping his hand on'the Jataka. “ book, that he is not the father of the two children. ;H he“ does so, applicant’s case will be dismissed. – The. Mudaliyar" Interpreter will administer the oath. Applicant will pay his" expenses.’’ He then adjourned the case to Wednesday, the 13th.On that day -the parties attended -again, When it appeared that -thepriest-had refused to allow-the swearing'to take place within theroom where the images of Buddha were kept. He was willing—and the applicant was willing—that the oath should be taken inthe outer verandah, and the applicant was also willing that thedefendant should swear at the dewale or at any other place whichthe priest would allow, but the' defendant refused to swear any-where but inside the vihare, which the priest forbade. TheMagistrate characterized this as a piece of quibbling on thedefendant’s part to avoid the necessity of taking – the oath,and made an order against him. Assume that the defendant wasquibbling, yet that did not justify the Magistrate in deciding againsthim without hearing what he and the witnesses cited to attendhad to say in defence. All that the Magistrate was justified indoing was to record the fact that the defendant refused to takethe oath, with his reasons therefor. No doubt when he came toweigh the evidence, if he was satisfied that the reason given bythe defendant was inadequate and a mere quibble, and that thedefendant was really afraid to take a solemn oath, he might takethat fact into consideration. But he must hear what both sidesand their witnesses have to say before he decides the case.
The case must, therefore, go back for the hearing to be continued.
1900.
July 6.