PONNAMMAH v. SEENITAMBY

120-NLR-NLR-V-22-PONNAMMAH-v.-SEENITAMBY.pdf


( SOS )
[Bull Bench.J
Present: Bertram C.J. and Ennis and J)o iSampiivu •f.-l.
PONNAMMAH *. SEEX.ITAA1 |i
356—1J. C. Batticaloir. $.395$
Maintenance Ordinance* s. 7—Corroboration of the evidence of it'? mother—Statements made by mother to third persons some too. hs afterconception—Evidence Ordinance. .%*. /••>7—Complaints mode beforepublic authority competent to investigate
The requirement of section 7 of the Maintenance Ordinance of1889 that, in order to justify an order for maintenance, t ho evidenceof the mother should be corroborated in some rnabi-rial particular byother evidence is satisfied by any kind of corroboration which isrecognized by law at the time that her evidence is given ; midconsequently section 157 of the Evidence Ordinance of 3895 appliesto section 7 of the Maintenance Ordinance of 1889.
Statements made by the mother to third persons :*omc monthsafter conception, and some months after intimacy had ceased, washeld not to be corroboration, as the statements were not made ator about the time of the intimacy*
rj>HE facts appear from the judgment.
This case was referred to a Full Court by Sluin' J. by the follow-'ing order:—
April 20, 1921. Shaw J.—
This case raises a very important point under the MaintenanceOrdinance, viz., whether previous statements made bv the motherof the illegitimate child to third, persons as to the paternity of theohild are sufficient corroboration for the purpose of .satisfying thorequirements of the last part of section 7 of the MaintenanceOrdinance. IrM r. case of Angokamy v. Kmnrli.s Appuf WoodRenton J. expri ■ ad the opinion that such proved statementswould be sufficient corroboration. The opinion expressed by theJudge in that case is, however, a merm obiter dictum, because therewas independent corroboration of another kind sufficient to complywith the.requirements of section 7 of the Ordinance. That easehas been followed in a case reported at 3 Weekly Reporter Hi Jtwas also in somewhat hesitating manner accepted,, by myself in acase reported in 1 Ceylon Weekly Reports 230. I have, however,serious doubts as to whether the opinion expressed is correct.
X{1911) 15 N. L. R.
1921.
( 396 )
1921,
Shaw J,
Pormammah
v,
Seenilamby
The question as to what is sufficient corroborative evidence in casesof this sort has been recently dealt with at considerable length inthe Court of Appeal in England in the case of Thomas v. Jones*and the opinion expressed in the case of Angohamy v. KirindisAppu 2 seems to me to conflict with the requirements which theCourt of Appeal have considered necessary in a similar matter inEngland. It is true that there is no provision in England similarto the provision in section 157 of the Evidence Ordinance. But itappears to me at least doubtful whether that section can have beenintended to vary the safeguards provided by a previous Ordinance.
At any rate, it is a matter of considerable importance, and it isdesirable to have a definite opinion expressed on it. I. therefore,refer it to a more fully constituted tribunal.
H. V. Perera, for defendant, appellant.—The evidence of themother must be corroborated by “ other evidence,” section 7, Itis submitted that a previous statement made by the mother to theeffect that the defendant is the father of the child is not such“other evidence.” What the Ordinance requires is some ground ofbelief other than the statement of the mother. Proof of the. factthat the same statement was made by the mother on some previousoccasion does not furnish the Court with an additional ground ofbelief. No doubt a previous statement made by the mother maybe an element in a set of circumstances pointing to the defendantas the father of the child, and such a set of circumstances would be“ other evidence ” of the allegation made by the mother(1 C. W. R. 208). Thus, where a statement as to the paternityof the child is made by the mother in the presence of the putativefather, in such circumstances that one would expect the defendantto deny the allegation if it is false, and if he does not deny it,there would be corroboration of the mother’s evidence by “ otherevidence ” (3 C. W. R. 87 and 366). In such cases it is theconduct of the defendant when the statement is made, and not themere making of the statements, that constitutes the “otherevidence.” In order to ascertain the meaning of the words “ otherevidence,” we must consider the law of evidence in force at thetime when the Maintenance Ordinance was enacted. That law wasthe English law, and under that law a previous statement made bya witness is not corroboration of 'evidence to the same effect sub-sequently given by the witness.
Even if section 157 of the Evidence Ordinance be read withsection 7 of the Maintenance Ordinance, the question is at whattime should the previous statement have been made in order tosatisfy the requirements of section 157, and to make such statementcorroboration of the subsequent evidence of the mother. Thesection requires that the previous statement should have been 1
1 36 Times Law Reports 872.a (2911) 25 N. L. R. 232.
( 397 )
made “ at or about the time when the facttook place.” Now, thefact to be proved is that the defendant is the father of the child.Neither the conception nor the birth of the child has any bearingon this question. The fact that indicates the defendant, as thefather of the child, is the existence of sexual intimacy between theparties at such a time that conception oan be attributed to it.Consequently, the previous statement must have been made by themother at the time of such sexual intimacy; in order to satisfy therequirements of section 157. A statement made at the time ofconception or birth is not sufficient. The obiter dictum of WoodRenton J. in Angohcmy v. KirineMs Appu1 in a contrary sense isnot oorreot. In the present case, when the inadmissible evidenceis left out, there only remains a statement as to paternity made bythe mother several months after conception.
J.Joseph, for respondent.—Other evidence ” means anyevidence which is admissible under the law of evidence in force atthe time when the question arises. The Legislature intendednothing more than this ; it had not in mind any particular speciesof evidence. Section 157 of the Evidence Ordinance must, there-fore, be read with section 7 of the Maintenance Ordinance. Thefact in question is the faot of paternity, and this consists of theseries of events commencing with the sexual intimacy between theparties and continuing till the birth of the child. The fact of thepaternity comes into question only when the birth takes place.Hence, a statement made by the mother at any time between thecommencement of sexual intimacy and the birth of the child orBh'ortly after satisfies the requirements of section 157.
– Moreover, in the present case, the mother also made a statementto the Vanniah, who made an investigation into a petition allegingthat there had been an attempt to procure an abortion. TheVanniah being an authority'competent to investigate the fact, themother’s statement to him would be corroboration of her testimonyunder the second part of section 157.
Counsel cited IS N. L. R. 232 and 1 C. W. R. 169.
June 17, 1921. Bertram C.J.—-
This is a case which comes before the Court on a reference fromShaw J;, and the point referred to us arises under the MaintenanceOrdinance, No. 19 of 1889, section 7. That section requires that,in order to justify an order of maintenance, the evidence of themother of the child should be corroborated in some materialparticular by other evidence. In this case the learned Magistrateaccepts as corroboration statements made by the mother of thechild to her mother, and, subsequently, to a Police Vidane and aRural Constable some months after the child was conceived. The
1 (1911) IS N. L. R. 232.
1921.
Ponnammah
v.
Seenitamby
( 398 )
1921«
Bertram
a j.
Ponnammah
v.
Seentiamby
leayned Magistrate has followed a previous decision of this Court,namely, a judgment of Wood Renton J. in Angohamy v. KirindisAppu.1 In that case Wood Renton J. first considered the bearing. of section 157 of the Evidence Ordinance upon the section of theMaintenance Ordinance just referred to. He expressed the opinionthat, when the section speaks of the corroboration of the evidenceof the mother, it must be taken to include any kind of corroborationwhich is recognized by law at the time that her evidence is given.In other words, the learned Judge held that section 157 of theEvidence Ordinance applied to section 7 of the MaintenanceOrdinance, and that, I take it, must be accepted as the law.
We have to ask ourselves, therefore, looking at section 157 of theEvidence Ordinance, whether the statements accepted as corro-boration were made at or about the time when the fact spoken toby the principal witness took place. That fact seems to me to bethe sexual intimacy between the appellant and the respondent.I would not narrow it to the actual act of connection which producedthe conception. But if a statement is made at or about the timewhen sexual intimacy is continuing between the parties, then itseems to me that under section 157 of the Evidence Ordinance astatement by the woman to another person alleging that intimacyis corroboration within the meaning of the section. There is,indeed, a case precisely in point, namely, the case referred to in thejudgment of my brother De Sampayo in Avalo Umma v. Adam-levvaipodi.2 There, a complaint was made at the* time whenintimacy was actually going on. But that case did not go the samelength as the previous case, Angohamy v. Kirindis Appu,1 to whichI have referred. In that case the evidence showed that, within a,few months of the conception and when her condition was discovered,the woman made a statement to her parents. Wood Renton J.observes that the words “ at or aboutJ; were relative terms. Ofcourse, in any case, it must be a question of fact whether oneevent is at or about the time of another. Personally, I feel adifficulty in following this pronouncement that a statement madeby a woman within a few months after conception is made “ at orabout the time 99 of the material fact under consideration, namely,the alleged sexual intimacy between the parties, unless, of course,if it were shown that the sexual intimacy continued after conceptionand down to about the time of the complaint.
In the present case I am not able to agree with the Magistratethat the statement made by the girl to her mother, and afterwardsto the local headman, can be considered as being made at or aboutthe time of the intimacy.
There is, of course, another branch of section 157 in addition tothat which I have already considered. If it were shown thatcompsaints were made before any public authority competent
1 (1911) 15 N. h,. R. 232.
* (1915) 1 C. W. R. 169.
( 309 )
to investigate the fact, that is to say, the intimacy, it would be 1921.
immaterial that the complaint was not made at or about the time „
of the intimacy. Something of this sort was suggested in this case. c.j.
It was said that there was an inquiry held by the Vanniah into an
anonymous petition presented by a mischief-maker, alleging that onr,aJnniathere had been an attempt to procure an abortion, and that the Seeniiambyrespondent was implicated in that attempt by having sent medicine,calculated to procure an abortion, to the girl’s mother. If therehad been any definite evidence of such an inquiry, and if the inquirywas held by the Vanniah as a police officer? and if it becamematerial in the course of the inquiry to consider whether th<‘respondent had sent medicine, then the question whether therespondent was the parent would be a material question in thatinquiry, and it would have been a question into which the Vanniahwould have been legally competent to inquire. No evidence of anysuch formal inquiry has been given in this case, and I do notthink it would be just to the person implicated to send the casedown now for such an investigation.
I may observe incidentally with regard to the Magistrate’s judg-ment; that he was not justified in saying that he fully believed thestatement of the mother of the applicant that the respondent senther some medicine to bring about an abortion. If that actuallyhad been done, it would have been a new material point in thecase, giving the very strongest corroboration of the girl’s statement.
But there was no evidence before the Magistrate, except pure-hearsay evidence, namely, the statement of the mother that themedicine was sent. The passage, in the learned Magistrate'sjudgment, therefore, was not justified by the evidence.
The immediate question we have to consider is simply whetherthe statements made by the girl to her mother and the rural policeofficers some months after conception, and, so far as it appears,some months after intimacy had ceased, can be considered as beingmade at or about the time of the intimacy. The answer to thequestion I would give in the negative, and I would, therefore,allow the appeal, but without costs, as costs are not pressed for.
Emus J.—I agree.
De Sampayo J.—I agree.
Appeal allowed.