081-NLR-NLR-V-44-NAVARATNAM-Appellant-and-UPPIN-MUDALALI-Respondent.pdf
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DE KRETSER J.—Navaratnam and Vppin Mudalali.
IMSPresent: de Kretser J.
NAVARATNAM, Appellant, and UPPIN MUDALALI, Respondent.
71—M. C. Kandy, 4,726
Maintenance—Corroboration supplied by defendant’s conduct—Evidence ofmaintenance to stop time running.
In an application for maintenance conduct pointing to the probabilityof the defendant being the father of the child is sufficient corroboration.
Where, on a question, whether the application was made in time,it is alleged that the defendant had given money for maintenance,—
Held, that corroboration was not necessary on the point.
PPEAL from an order of the Magistrate of Kandy.
E. F. N. Gratiaen (with him I. Misso), for appellant.
H. V. Perera, K.C. (with him H. W. Jayewardene) for respondent.
March 23, 1943. de Kretser J.—
This is a maintenance case. Two points arise for determination, viz.,
the paternity of the child ; (b) whether the application had been madewithin time.
The learned Magistrate decided (a) in favour of the applicant but (b)against her, and she appealed. When the case first came up before meI decided to give the defendant an opportunity of calling evidence as itwas not then clear whether he had been taken by surprise or not by theapplicant’s assertion that he had supported her during his absence inIndia through one Nair, who was a trusted employee of long standing inthe firm of which the defendant was a junior partner. The defendantdid not take any steps to procure Nair’s attendance or to produce thebooks of the firm and the case came back for instructions, whereupon Igave him a time limit within which to call the evidence, and the evidencewas then recorded. It is now clear that defendant knew that Nair’sevidence might be of material assistance, for he had put Nair on his listof witnesses and Nair had been in attendance. Nair denied the applicant’sallegation and also produced books covering only the period of defendant’sabsence in India. He was disbelieved, and the Magistrate came to theconclusion that Nair had supplied provisions to the applicant and haddone so on the defendant’s instructions. The Magistrate had beeninstructed to reconsider the question of paternity on which respondenthad contested his finding but he did not alter his opinion. The case wasthen sent back and was further argued.
■ There can be no doubt but that there are contradictions in the evidenceof the applicant and her mother, who corroborated her, but the Magistratehad those contradictions before him when he decided in the applicant’sfavour in no uncertain terms. The applicant and her mother appear tobe illiterate and unintelligent persons, the applicant being only 16 yearsold, and they made very good subjects for cross-examination. I have .
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DE KRETSER J.—Navaratnam and Uppin Mudalali.
given the evidence my careful consideration and on the recorded evidenceit is possible to arrive at a conclusion adverse to the applicant, but I findit difficult to say the Magistrate arrived at a wrong conclusion. Thereare many indications that her evidence is true.
The defendant’s explanation is that the applicant was set up by oneLatiff with whom he fell out in 1940. The applicant had cited Sundara-sekere but it was defendant who called him. He contradicted her as tothe person who had engaged his house but stated that on seeing hercondition he had asked who the father was and she had replied, “Themodalali ”. In re-examination he said there were many modalaiis inKadugannawa but still he did not inquire further. Quite clearly hemust have known to whom the reference was, more especially as theapplicant had been living just behind the shop of the defendant. Thisevidence means that in 1939 she had given the mudalali as the father ofher child, and goes against the defendant’s evidence that this was a falsecase instigated by Latiff with whom he had fallen out in 1940. If anothermodalali were the father he would be good enough for the applicant tosue. It was urged that no neighbours had been called but defendant hadcited two of them and had not" called them. There are other points tooand it is impossible to say the Magistrate, who saw the witnesses, waswrong in his conclusions.
Once we get that result, there is ample corroboration of her story inthe evidence given by her mother. There is a further piece of corrobora-tion. The Magistrate had not disbelieved her when she stated thatNair had supplied her with provisions but he thought there was noevidence that toe did so at defendant’s instance. Here he had lost sightof the circumstantial evidence in the case rendering it likely that, if Nairdid supply provisions, he did so not of his own volition but at defendant’sinstance, he being anxious to avoid an immediate scandal. When Nairdid give evidence, after the pinch of the case had been known, he deniedher allegation and the Magistrate disbelieved him. Nair stated that ifit were known that he had arranged the union, not only defendant buthe also would be in trouble. He had been in the firm for about 20 yearsand was drawing a salary of Rs. 90 a month. He had a mistress to whomhe supplied provisions but this did not appear in the books, and he saidthat if defendant paid in cash like any other customer, then nothingwould appear in the books.
On the matter of payment to stop time running no corroboration isneeded. That is the law in England too, where similar provisions exist,vide Halsbury on Bastardy.
It is impossible on this point too to say the Magistrate was wrong,and it follows that if defendant did provide her with provisions itwould be an indication that he was the father of the child.
Now, corroboration need not be of any special nature. The need forcorroboration arises in most cases bringing in the sexual element, and ina case of rape our Court of Criminal Appeal held in Rex v. Marthelis'that the rule laid down in Rex v. Baskerville2 applied and that the corro-boration required was corroboration “ which shows or tends to show thatthe story of the accomplice that the accused committed the crime is
3 {1916) 2 K.B.D. 60S.
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DE KRETSER J.—Navaratnam and Uppin Mudalali.
true, not merely that the crime had been committed but that it wascommitted by the accused. ” In the present case we have direct evidencefrom the mother and further evidence from the fact of Nair’s havingsupplied the applicant with provisions.' Halsbury, in dealing with anexactly similar provision in England, cites cases. In Reffell v. Morton.1any conduct pointing to the probability of the defendant being thefather was held to be sufficient corroboration.
The Magistrate suggests that defendant be ordered to pay Rs. 30 amonth. He has been influenced by defendant’s means and has notconsidered the status of the applicant and the age of the child. I thinkthat Rs." 15 a mo'nth would be sufficient. The appeal is allowed, anddefendant is ordered to pay Rs. 15 a month from the date of the firstordered by the Magistrate. The applicant is entitled to her costs.
Appeal allowed.
» 11906) 70 J.P. 347.