JAYETILBKE J.—Saram Appuhamy v. Rannie.
1946Present: Jayetlleke J.SARAM APPUHAMY and RANNIE.
M. C. Regatta, 6,417.
Maintenance—Supposed resemblance of children to father—Evidence—Unsafe guide.
It is not safe to decide paternity in a maintenance case on the allegedresemblance of the children to the respondent.
^ PPEAL from an order of the Magistrate of Keg alia.
V. Perera, K.C. (with him S. P. M. Rajendran), for the defendant,appellant.
R.N. IUangakoon, for the applicant, respondent.
January 23, 1946. Jayetilbke J.—
Mr. H. V. Perera contended that the Magistrate has erred on twopoints. He invited my attention to the following passages in thejudgment:—
“According to the defendant’s evidence he states that he sentthe petition D1 to the A. G. A., Kegalla, against Punchietana in whichhe makes allegations against Punchietana and wants the A. G. A. topunish Punchietana for the offence for which his brother Undiya hadbeen mistakenly punished. The defendant states that it is after thispetition that the applicant abused bim in the Hettimulla Bazaar,that he filed a case against the applicant for the abuse and that thismaintenance case was filed by the applicant after his case was filed.Unfortunately for the defendant the sequence of events according tohim is not borne out by the dates. 1)1 is dated 5th August, 1944,and this maintenance suit was instituted on 30th June, 1944
JAYPTH.BKE J.—Saram Appuhamy v. Bonnie.
“I might also mention that at the closing stages of the trial,I looked at the faces of the two children and I am of opinion that thereis a good deal in the features of these children that do not leave theirpaternity in doubt for long. Both children resemble the defendant
He pointed out that D1 refers to a complaint dated April 12, 1944, andthat the Magistrate had overlooked this fact. He submitted that theMagistrate’s duty was to decide the case on the evidence before himand not on the supposed resemblance between the children and thedefendant. I think the appellant is entitled to succeed on both points.I would set aside the order appealed from and send the case back for afresh trial before another Magistrate.
Fresh trial ordered.