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PODINA v. SADA.P. C., Balapitiya, 20,239.
Maintenance—Ordinance No. 19 of 1889—Irregular commencement of suit—Evidence of paternity—Competency of wife to give such evidence.
Before summons can be served in a case of maintenance, underOrdinance No. 19 of 1889, it is necessary that there should be a writtenapplication to the Police Magistrate signed by the applicant, and anexamination of the applicant on oath or affirmation.
It is not necessary that the mother should be the applicant.
The evidence of the wife to show who the true father is is not admissibletill it has been established by independent evidence that the child is notthe child of her husband.
HIS was a case of maintenance. It appeared that the com-
plainant was lawfully married to one Babuwa in 1893, butthat she refrained from living with her husband, as she discoveredsoon after the marriage that he was living with another womanand had children by her. The defendant attempted to provethat the child, which was ten months old, and in respect of whichthis case was instituted, was Babuwa’s. The Police Magistratefound the child to be the defendant’s, and ordered him to pay■maintenance at the rate of Bs. 2 per month.
H. J. C. Pereira, for appellant.—The proceedings were irregu-larly commenced. Summons on the appellant was served withoutexamining the applicant on oath or affirmation, as required by
( no )1900.section 14 of Ordinance No. 19 of 1889. The basis of the proceed-ing S3.ingg is a report of a headman to the Court that complainant had
made a complaint to him that the appellant failed to maintain hischild by her. There was no evidence to rebut the presumptionraised by section 112 of the Evidence Ordinance that the child inquestion was her husband’s. The complainant swore that, aftermarriage and separation the day after, “ we never saw one another.”This evidence is inadmissible. Appellant has proved that thecomplainant was in fact conducted to her husband’s house andlived with him, that the appellant is complainant’s cousin, andthat owing to ill-feeling this false case has been instituted.
This is a case under the Maintenance Ordinance, No. 19 of 1889,in which the Police Magistrate of Balapitiya has made an orderagainst the respondent to pay the sum of Rs. 2 a month for the■maintenance of an infant child, which he finds to be the respond-ent’s child. The mother is a cousin of the respondent. Theproceedings were in the highest degree irregular, and I cannothelp thinking that the Magistrate had never read the Ordinanceunder which he purported to act. The proceedings were com-menced by a report sent to the Magistrate by the headman of thevillage in which the mother lived, to the effect that the womanhad complained to him that the respondent had been living withher and had a child by her, and that he had recently deserted her.The report went on to state that he had made inquiries into thematter and found that the respondent and the woman had beenliving together as husband and wife.
Attached to the report is a list of witnesses. It will be seenthat this is the ordinary form of a report of a crime which hascome under a headman’s cognizance. On that report the Magis-trate issued a summons to the respondent to appear to answerthe charge, “ for that you did since last month failed (sic) to“ maintain your child by Singappapullehena Radage Podina.”Now that is not the way in which, according to the procedureprescribed by the Ordinance, proceedings for obtaining mainte-nance are to be commenced. The application is to be in writingand signed by the applicant, and then upon that application theMagistrate is to commence the inquiry by examining the appli-cant on oath or affirmation, and after that, and then only, is thesummons to be issued. Now I do not say that it is necessary forthe mother to be the applicant. The Ordinance does not say so;but, whoever the applicant is, the applicant must be examined onoath before summons is issued, and that was not done in the
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present case. The proceedings were quite irregular. At the 1900.same time the respondent did not take any objection to the June 23*regularity of the proceedings, and I do not think that he has been Bonseb, C.J.in any way prejudiced by the irregularity. If I thought that hehad been prejudiced, or if he had objected at the trial to theirregularity, I should have quashed the proceedings.
Now to come to the question at issue between the parties—thepaternity of the child. It appears that seven years-ago the motherwas married to a man called Babuwa, who lives in a village12 miles away from her village, and that marriage was apparentlylnever dissolved. Mr. Pereira argued that there was no evidence■which was sufficient in law to rebut the presumption raised bysection 112 of the Evidence Ordinance that the child was thehusband’s. He said, and rightly said, that the evidence of thewife was not admissible to show that she had not had connection•with her husband. The English Law of Evidence which governsthis case is laid down in Mr. Justice Stephen’s Digest of the Lawof Evidence in this way:—“ Neither the mother nor the husband“ is a competent witness as to the fact of their having or not having“ had sexual intercourse with each other, nor are any declarations“ by them upon that subject deemed to be relevant facts when“ the legitimacy of the woman’s child is in question, whether the“ mother or her husband can be called as a witness or not, pro-“ vided that in applications for affiliation orders, when proof has“ been given of the non-access of the husband at any time when"his wife’s child could have been begotten, the wife may give" evidence as to the person by whom it was begotten.” (Art. 98.)
That is to say, after it has been established by independentevidence that the child is not the child of her husband, then theevidence of the wife is admissible to show who the true father is.
Therefore, we have to see in this case what independent evidencethere is that the husband was not the father of the child. Thereis a conflict of evidence on this point, but the Magistrate believedthe evidence led on behalf of the woman. Her father states thatthe respondent kept his daughter in his, the father’s, house forfive or six years continuously up to about a month before the trial.
He says, as I read his evidence, that the marriage between hisdaughter and the respondent was never consummated, although theceremony was gone through at the registrar’s office, for thatbefore the woman was conducted it was found that the husbandwas living with another woman by whom he had a number ofchildren; and that being so, nothing further was done. Now,anybody who is acquainted with the habits and customs of theSinhalese knows that the conducting of the bride is an essential
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part of the marriage ceremony—in fact, with them it is theessential part. They look upon the registration a meaninglessform imposed on them for some unintelligible reason by an all-powerful Government, with which they are obliged to comply.In my opinion this evidence, if believed, shows that it is in thehighest degree improbable that access for the purpose of sexualintercourse could have taken place between the alleged husbandand this woman. The fact that she and the respondent, her cousin,were living together as husband and wife in her father’s house forlive or six years, renders it improbable in the highest degreethat the husband, with whom relations had been broken oft, shouldhave visited her for the purpose of sexual intercourse. I think,therefore, that the Magistrate was justified in law in coming tothe conclusion he did,—that this was not the child of Babuwa, the'alleged husband.
Then, the question arises whether it was proved that the childwas the child of the respondent. Now we have got to the stageat which the mother’s evidence as to paternity is admissible. She'says that she was living with the respondent as his wife in herfather’s house, and that he was the father of her child.
The peiace officer of the village was called. He says that therespondent admitted he was the father of the child.
Another peace officer of a neighbouring village says that he•visited the house and saw them living together, that he found the(respondent nursing the child in his arms. It was suggested thatas he was a cousin of the mother it would be natural for him tonurse the child, but having regard to the evidence of a closerrelationship between the parties, I think the act of the respondent(must be ascribed to other than cousinly feeling. Therefore the'appeal must be dismissed.
There is one observation which I desire to make on a portionof the judgment. The Magistrate says:—■“ Respondent deniespaternity, but he will not commit himself as to who is the father.”I think that was a very sensible proceeding on the respondent’spart. I do not see how the Magistrate could expect him to commithimself as to the paternity of the child. It was not for him toestablish whose child it was. It was for the applicant to establishthat the child was the respondent’s.