Decisory oath—Application for maintenance for illegitimate child—Motherchallenging defendant to take the oath that he did not visit her—Oathtaken—Case to be tried on evidence.
Where a mother applied for maintenance on behalf of an illegiti-mate child and challenged the defendant to take an oath at atemple that he did not visit her and that the child was not his,and the defendant accepted the challenge and took the oath,the Supreme Court sent the case back to be tried on evidence.
r~|~>HE facts appear from the judgment.
No appearance.
August 2,1923. Jayewardene A.J.—
This is an application for maintenance by a woman on behalfof her illegitimate child. On the day of trial, the applicant chal-lenged the respondent to take an oath at Alutnuwara dewala thathe did not visit the applicant and that the child is not his. Therespondent accepted the challenge and took the oath. The appli-cation was thereupon dismissed. The applicant then petitionedthis Court, saying that she consented to accept the respondent’soath at the instigation of the arachchi of the village and prayingthat the case be re-opened. As I felt doubtful whether a mainte-nance case, in which an illegitimate child’s interests are concerned,could be decided by a decisory oath I ordered the case to be listedfor argument after notice to both parties. Neither party appearedbefore me.
( 217 )
In Kiri Menika v. Punchirdla1 I find that this Court set asidea decree based on a decisory oath taken by the defendant on thechallenge of- a next Mend who was suing on behalf of two minors.In that case the action was about some lands. The defendantsoffered to take an oath in terms of the Oaths Ordinance of 1895.The next Mend consented to be bound by such oath, but latermoved to withdraw that consent. The Judge disallowed themotion, and the defendants took the oath. The next Mend againpetitioned making the same application. The Court held theminors bound by the oath and dismissed the action. The nextMend appealed, and Grenier J. said :—
Sayalee v.Setuwa
“ The plaintiffs in this case are minors, and their interestsshould be jealously guarded by the Court. The caseshould not have been disposed of in the way it was. Theaction of plaintiffs’ next Mends was not sanctioned bythe Court, and the next Mends themselves appear tohave petitioned the Court, soon after the reference to thedecisory oath, asking the Court to order a trial of thecase. It was clearly the duty of the Court to protectthe interests of the minors, even if the next Mends wereinclined to prejudice them. The order appealed frommust be set aside, and the case sent back for trial in duecourse.”
This Court appears to have treated the acceptance of the offerto take the oath as a compromise under section 500 of the CivilProcedure Code, which forbids a next Mend from entering intoany agreement or compromise with reference to the action withoutthe leave of the Court. Implied assent of the Court to such anagreement or compromise is insufficient, but the attention of theCourt must be strictly called to the fact that a minor was a partyto the compromise, and the Court must expressly approve of theproposed compromise. See Silindu v. Akura.2 Proceedings formaintenance under Ordinance No. 19 of 1889 are civil. See Justinav. Arman? A mother suing for maintenance on behalf of anillegitimate child is in the position of a next Mend. It has alsobeen held that an illegitimate child is not bound by any compro-mise entered into between the parents, See Janehamy v. DarlisZoysaA In view of these decisions, acting in revision, I set asidethe order of dismissal entered by the Magistrate and send the caseback to be decided on evidence.
Set aside.
1 (2909) 1 Curr. L. R. 13.
* (1907) 10 N. L. R. 193.
9 (1909) 1 Curr. L. R. 120 ; 12 N. L. R. 263.4 (1909) 12 N. L. R. 70.