003-NLR-NLR-V-55-PUNCHIAPPUHAMY-Appellant-and-WIMALAWATHIE-Respondent.pdf
ROSE C.J.—Punehiappuhamy v. Wimalawathie11
Present: Rose C.J.
PTTNTTHTAPPTTFTA MV, Appellant, and WIMATAW A THIE,Respondent
S. C. 112—M. C. Kurunegala, 56,227
Maintenance Ordinance (Cap. 76)—Section 6—Illegitimate child—Equivocal acts—Corroborative value thereof.
Where, in an application for the maintenance of an illegitimate child, theacts relied upon as corroboration are equivocal, it is for the Magistrate to decidewhether in the circumstances of the particular case such equivocal acts in factcorroborate the applicant’s story.
PPTCAT, from a judgment of the Magistrate’s Court, Kurunegala.
V. Perera, Q.C., with Austin Jayasuriya, for the defendant appellant.Vernon Wijetunge, for the applicant respondent.
Cur. adv. vult.
July 23, 1952. Rose C.J.—
This appeal turns upon the question as to whether there was sufficientcorroboration in law of the applicant’s story that the appellant was thefather of her child.
There is no doubt that the Magistrate disbelieved the story of theappellant in toto, but as Counsel for the appellant in my opinion rightlycontends the question of corroboration should be considered apart fromthis fact.
The circumstances upon which the applicant relies as corroborationare as follows, (1) the payment of Rs. 125 by the appellant to a Tamilwoman as a fee for her looking after the respondent’s baby after therespondent’s departure from hospital, (2) the fact that the respondentwas taken by the appellant to Kegalle Hospital which was not the nearesthospital to the respondent’s house, or prima facie the most appropriatefor a confinement, (3) the prompt action taken by the appellant to ridhimself of the baby as soon as the mother and the child were dischargedfrom the hospital, (4) the absence of any attempt to trace the true father,
the fact that the appellant permitted the respondent to remain in hishouse, where his wife was already in residence, for an indefinite period.
The appellant seeks to discount these factors by reciting that therespondent was, in effect, an adopted daughter of his of some yearsstanding ; that she had originally come to the house when she was oftender years ; that he had grown fond of her as indeed had his wife ; andthat his actions which might in normal circumstances 'be interpreted as
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ROSE C.J.—Punchiappuhamy v. Wimalawathie
equivocal were due to charitable feelings towards the respondent as aresult of their long association and her dependency upon him. {.
Having regard to this background, learned Counsel for the appellantcontends that the items of corroboration relied upon by the respondentin the present case should be subject to the cominent of Lt/rd JusticeAtkin in Thomas v. Jones x, where he says, “ It may be that light maybe thrown upon something which in itself is innocent and irrelevant,by some other circumstance which though not itself conclusive may yetbe illuminating. But, apart from that, it appears to me impossible, whendealing with the question of corroboration, that the accumulation ofpieces of evidence, each of which by itself is not admissible as corro-borative evidence, can amount in the whole to corroboration. Exnihilo nihil fit. ”
It is to be noted in this passage that Lord Justice Atkin is referringto pieces of evidence each of which by itself is not admissible as corro-borative evidence. That seems to me to be a very different thing frompieces of evidence which may or may not be regarded as corroborationby the Magistrate, according to the surrounding circumstances. Inregard to these matters it must be borne in mind that the person to besatisfied as to whether or not a particular fact is corroborative of thepetitioner’s story is the Magistrate, and that in deciding whether or not heshould be satisfied he should apply the test which is conveniently statedby Lord Justice Atkin at page 45 in the same case as follows, “ It (corro-borative evidence) must be evidence which tends to prove that theman is the father of the applicant’s child. In other words it must beevidence implicating the man, evidence which makes it more probablethan not that the respondent is the father of the child ”. In the lightof that test and bearing in mind that it is the satisfaction of the learnedMagistrate which is in question, I consider that it is not open to me tohold that the items of alleged corroboration which I have enumeratednow cannot properly be 'considered to be corroborative evidence. It isno doubt true that each individual item— and indeed all the items takencollectively—is capable'' Of explanation. But in my opinion it is forthe learned Magistrate to decide whether the explanation offered isacceptable to him. If it is not, then in my view an appellant cannot beheard to complain that his explanation should or must have been accepted.Where in cases of this kind the acts relied upon as corroboration areequivocal—as I am prepared to concede is the case in the present matter—I consider that it is for the Magistrate to decide whether in the circum-stances of the particular matter, including of course any explanationoffered by the applicant, such equivocal acts in fact corroborate theapplicant’s story. I am certainly not prepared to hold that the items ofcorroboration relied upon for the present respondent are incapable ofbeing regarded as corroborative evidence.
For these reasons the appeal must be dismissed with costs.
Appeal dismissed.
1 (1921) 1 K. B. 22 at p. 48.