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Present: Bertram C.J.PODIHAMY v. WICKREMESINGHE.
579—P. G. Matara, 31,546.
Maintenance—Application by mother—Illegitimate children—Decisoryoath.
A case in which a mother applied for maintenance on behalf of herillegitimate children may be put to the test of a decisory oath,provided the Magistrate is satisfied that it is in the interests of thechildren that it should be done.
Sayalee v. Setuwa1 explained.
PPEAL from an order of the Police Magistrate of Matara,dismissing an application for maintenance.
Soertsz, for applicant, appellant.
H. V. Perera (with him Jayasooriya), for respondent.
November 18, 1924. Bertram C.J.—
This is an appeal in a maintenance case which raises some pointsof difficulty. The allegation of the applicant, Podyhamy, was tothe effect that the respondent, Don Carolis Wickremesinghe, hadmaintained her as his mistress for a period of seven years, and thatshe had two children by him, one six years old and the other sixmonths old. She further alleges that the respondent continued tomaintain her up to about three months before action. He now, soshe says, repudiates his responsibilities, having been lately married.The applicant lives with her mother, and according to her story, the1 (1923) 25 N. L. B. 216.
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respondent regularly visited her, and kept his clothes at her mother’shouse. The respondent would appear to be a person of someimportance. He is the brother of the local headman, and also abrother of the late headman. He is a cousin of a headman of aneighbouring village. The applicant filed a list of five witnesses.The respondent, on the other hand, filed a counter list of witnesses,including a Vidane Arachchi and two headmen. The VidaneArachchi was to prove the loose character of the applicant. Therespondent alleged that the case was instigated by his brother-in-law, yet another headman, the peace officer of a neighbouringvillage.
When the case came up for hearing none of the witnesses cited bythe applicant appear to have been available. She had nobody tosupport her except her mother and an uncle, who was not on herlist of witnesses. Discouraged, no doubt, by this circumstance, shechallenged the respondent to take a decisory oath at the temple atTissamaharama. On this point the case underwent a series ofvicissitudes. First, the Magistrate ruled against the applicant onthe ground that section 9 of Ordinance No. 9 of 1895 only applied tojudicial proceedings of a civil nature, and that he was not satisfiedthat a maintenance case was a proceeding of a civil nature. Theapplicant was thereupon called, and after a few introductorycircumstances, she broke down and refused to proceed with thecase. The Magistrate, quite rightly, refused to allow her to with-draw from the case as the interests of the children were involved.After some further examination, applicant’s advocate discoveredan authority which decides that maintenance proceedings areproceedings of a civil nature, see Eliza v. Jokino.1 The applicantthereupon repeated her challenge to the respondent to take an oathat Tissamaharama Dagoba, and the respondent declared that he waswilling to do so. The Magistrate was in the course of making hisorder for this purpose, when another counsel, as amicus curias, drewhis attention to the recent decision of my brother Jayewardene(Sayalec v. Setuwa (supra)), and this case was taken as deciding thatin no case where the interests of minor children were involved is themother in a maintenance case entitled to put the case to the test ofa decisory oath. This, however, is not the proper interpretation ofthe decision. Acting on this misinterpretation, the learned Magis-trate ordered the case to proceed.
When applicant first appeared before the Court, it was alleged(no doubt with a view to impugning her character) that a certainsore which she was suffering from was due to a fight. When shenext appeared she denied this, and said it was due to an abscess, andthis she subsequently established by medical testimony. When theCourt went into the merits of the case, the defence took what Icannot help thinking was a singular form of a suggestion that the
1 (1917) 20 N. L. JR, 157.
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two children were due to an intimacy between the applicant anaJuwanis, who was said to be living in a house in the same compoundwith her. Juwanis, however, from the evidence appears at thetime when the first child was born to be a mere schoolboy of ten oreleven years of age. Both mother and daughter definitely swearto the juvenile age of this boy, though there was naturally a certainwant of precision in their particulars. The girl said she was ten ortwelve years older than Juwanis, and she was now twenty-five. Itis by no means clear that Juwanis had ever paid poll tax. Nofacts were stated or put to the witnesses which, in any way, suggestedany familiarity between this boy and the mother of the two children.The learned Magistrate dismissed the girl’s application saying,“ there are numerous contradictions between the applicant and hermother. I gravely doubt whether applicant is not trying to shiftto respondent the responsibility for children, of whom Juwanis isactually the father.”
The oase is one which is somewhat difficult to deal with. Thelearned Magistrate has clearly misinterpreted the judgment of mybrother Jayewardene. The effect of that' judgment is that beforeallowing a mother in a maintenance case to put the case to the testof a decisory oath, the Magistrate must be satisfied that it is in theinterests of the children that she should be allowed to do so. It isoften difficult for a woman in a maintenance case to procure thenecessary corroboration, but her case may, nevertheless, be true.There may well be instances in which her position is desperate, anda decisory oath is her only hope. In Muhammadan law it is alwaysthe privilege of a party, who has failed to prove his case, to challengeriie other party to take an oath. In the present instance, theposition of the applicant was in fact desperate. She had not beenable to procure the attendance of any of the witnesses on her list,though this circumstance was not known to the learned Magistratewhen she first made her application. The absence of these wit-nesses may, of course, be due to the fact that they could not supporta false story, but their absence may also have been due to the factthat, owing to the social and official connections of the respondent,they were afraid .or reluctant to support a true one.
It would appear, therefore, that the learned Magistrate wasmistaken in his final determination that the mother ought not to beallowed to put the rights of herself and her children to the test of anoath. Some time has, however, now elapsed. The test of an oathis deprived of a good part of its value, unless it is promptly takenupon a challenge made in Court. The respondent has now so farcommitted himself that it is very unlikely that he will refuse to takethe oath in any circumstances.
With regard to the merits of the case, I cannot, of course, saythat the learned Magistrate was necessarily wrong in refusing todecide the case in the applicant’s favour simply upon the evidence of
mother and herself alone. But, nevertheless, this seems to meto .be a case in which the facts should be more fuHy investigated."The learned Magistrate, having already expressed an opinion, wouldno doubt desire to be relieved of the necessity of embarking on afurther inquiry.
I think, therefore, the best course will be to remit the case forfurther inquiry before another Magistrate. The witnesses on theapplicant’s list should also be summoned, and any other witnesseswhom either party desires. Further the boy, Juwanis, should bebefore the Court, and some definite evidence of his age should beobtained, if it is procurable. Should the' applicant renew herapplication for a decisory oath, the learned Magistrate, to whom thecase is remitted, will then have to consider her application in view,of the principles above explained.
I make order accordingly.