087-NLR-NLR-V-48-SELLIAH-Appellant-and-SINNAMMAH-Respondent.pdf
261
DIAS J.—Selliah v. Sinnammah.
1947Present: Dias J.
SELLIAH, Appellant, and SINNAMMAH, Respondent.
375—M. C. Jaffna, 1J97..
Maintenance—Evidence Ordinance, s. 112—Meaning of “access to the mother”—Legitimacy.of child bom during subsistence of marriage—Civil nature ofmaintenance proceedings—Fact of wife’s living in adultery—Burden ofproof is on husband—Maintenance Ordinance (Cap. 76), ss. 2, 3, 4, 14.Where a wife sued the husband for maintenance for herself and achild and the Court found as a fact that, although the applicant andthe defendant were living apart at the time when the child could havebeen begotten, there were both the possibility of and opportunitiesfor intercourse—
Held, that the word “ access ” in section 112 of the Evidence Ordinancemeant no more than opportunity of intercourse and that the defendantwas, therefore, liable to maintain the child. In view of the decision ofthe Privy Council in Karapaya Servai v. Mayandi (A. I. R. 1934 P. C. 49)the judgment of the Full Bench in Jane Nona v. Leo (1923) 25 N. L. R. 241could no longer be regarded as binding authority.
Held, further, (i) that proceedings under the Maintenance Ordinanceare not criminal but civil in their nature ;
(ii.) that before the defendant was heard, it was not the duty of theapplicant to have proved, as part of her case, that she was not livingin adultery. When allegation is made under section 4 of the MaintenanceOrdinance that the wife is living in adultry, the burden is on the husbandto prove that fact.
Vidane v. Ukkumenika (1946) 48 N. L. R. 256 doubted.
PPEAL against an order of the Magistrate’s Court, Jaffna.
H. W. Thambiah, for the respondent, appellant.
No appearance for the applicant-respondent.
Cur. adv. vult.
June 16, 1947. Dias J.—
This appeal was pressed on two points. It was urged in the firstplace that the Full Bench decision in Jane Nona v. Leo 1 has not beenoverruled by the decision of the Privy Council in Karapaya Servai v.Mayandi‘ and that, therefore, the Magistrate’s order condemning theappellant to pay maintenance in regard to the child Saraswathie is badinasmuch as at the time that child could have been begotten the appellantand his wife, the applicant, were living apart and he had establishedunder section 112 of the Evidence Ordinance that during that period hehad no “ access ” to his wife in the sence that no actual maritalrelations had taken place between them. It was contended in the secondplace that the order of the Magistrate condemning the appellant to paymaintenance to the applicant cannot be justified because the burden ofproving that she was not living in adultery under section 4 of theMaintenance Ordinance (Chap. 76) was on the woman, and that theonus of affirmatively proving that she was living in adultery waswrongly placed on him. In support of the latter proposition, the caseof Vidane v. Ukkumenika3 was cited. For both these reasons it wasargued that the Magistrate’s order must be set aside.
In' Jane Nona v. Leo* the word “access” in section 112 of theEvidence Ordinance was held to mean “ actual intercourse ” and not“ possibility of access In Ranasinghe. v. Sirimanna * Howard C. J. said1 (1923) 25 N. L. R. 241.5 (1946) 48 N. L. S. 256 ; 34 C. L. W. 21.
» A. I. R. (1934) P. C. 49.* (1946) 47 N. L. R. 112.
262
DIAS J.—Selliah v. Sinnammah.
“ In the case of Karapaya Servai v. Mayctndi1 it was held by theirLordships of the Privy Council that the word ‘ access ’ means no more than1 opportunity of intercourse It had been suggested in that case bycounsel for the appellant that the word implied ‘ actual cohabitationIn view of this decision the judgment of the full Bench in Jane Nona v.Leo1 that the word ‘ access ’ in section 112 of the Evidence Ordinance isused in the sense of ‘ actual intercourse ’ and not ‘ possibility of access ’or ‘ opportunity for intercourse ’ can no longer be regarded as a bindingauthority. ” In a recent case I followed the decision in Ranasinghe v.Sirimanna (supra). I am unable to agree with the contention that theobservations of the Privy Council in Karapaya Servai v. Mayandi1 aremere obiter dicta, and, therefore, not binding. The Magistrate has foundas a fact that, although the applicant and the appellant were livingapart at the time the child could have been begotten, there were boththe possibility of and opportunities for intercourse. I am unable todisturb the findings on this point. The first contention of the appellant,therefore, fails.
Proceedings under the Maintenance Ordinance are not criminal butcivil in their nature. This has been laid down in a long chain of decidedcases. In Subaliya v. Kannangara* Bonser C.J. held that the foundationof the Magistrate’s Court in matters of maintenance is the civil liabilityof the father already existing under the Roman Dutch Law wherein themother can compel the performance of this duty by civil action, andthat Chapter 76 merely provided a simpler speedier and less costlyremedy. In Letchiman Pillai v. Kandiah * Drieberg J. following Subaliyav. Kannangara” said that a wife’s claim to maintenance is on the samefooting, and that it has been held that the common law right of actiondoes not now exist and she can claim relief only under the MaintenanceOrdinance. In Jane Nona v. Van Twest ' Dalton J., after reviewing allthe decided cases, said that they lead one to conclude that maintenanceproceedings are of a civil nature. Therefore inculpatory statementsmade by the man to a police officer can be proved against him in amaintenance proceeding for he is not an accused—Bebi v. Tidiyas Appu *.Maintenance proceedings not being criminal in their nature can bedecided by a decisory oath—Eliza v. Jokinu In criminal trials beforea Magisu'ate the prosecution cannot lead evidence in rebuttal, but inmantenance cases the applicant can do so, because the proceedingsare civil by nature and not criminal—Aja Umma v. Hameedu8.
In a criminal trial the right to begin is fixed by law. The accusedbeing presumed to be innocent, and, because if no evidence was led oneither side, the prisoner would be entitled to be acquitted by reason ofthe presumption of innocence, therefore the prosecution must begin—seesection 101 Evidence Ordinance, Illustration (a). In all other proceedingsunless the burden of proof is by law expressly placed on a particular person,the right to begin is laid down by section 102 of the Evidence Ordinance.The burden of proof in a suit or proceeding lies on that person who would
1 A. I. B. (1934) P. C. 49.• (1929)30 N. L. B.at p. 451.
(1923) 25 N. L. B. 241.• (1914)18 N. L. B.81.
J (1899) 4 N. L. B. 121.’ (1917)20 N. L. B.157.
(1928) 30 N. L. B. at p. 281.» (1939)10 C. h. Bee. 73.
DIAS J.—Selliah v. Sinnammah,
283
fall if no evidence at all were given on either side. The burden of proofas to any particular fact lies on that person who wishes the Court to believein its existence, unless it is provided by any law that the proof of thatfact shall lie on any particular person—section 103, Evidence Ordinance.
Undei the Maintenance Ordinance, section 14 provides that before sum-mons is i sued on the respondent the Magistrate shall commence the inquiryby exam ning the applicant on oath or affirmation. If sifter such exami-nation th ire is in the judgment of the Magistrate no sufficient groundfor proci eding, he may make order refusing to issue a summons. Whathas the . pplicant to prove at this preliminary ex parte proceeding ?Under station 2 of the Ordinance she must satisfy the Magistrate primafacie hat she is the wife of the respondent or the mother of his illegitimatechild, ihs- the respondent having sufficient means either neglects orrefuses to maintain her, or that the illegitimate child is unable to maintainitself. I do not think she has to prove anything more. If the Magistrateis satisfied on these points he will issue process.
After the respondent appears the inter partes inquiry begins. Theapplicant has already begun when she gave her ex parte evidence. Shewill now be recalled and repeats and amplifies her evidence, if necessary,and submits herself for cross-examination. After that she calls herwitnesses. When the respondent appears he may under section 3 offer tomaintain his wife on condition that she lives with him. If the ladyrefuses to do so and establishes to the satisfaction of the Magistratethat he is living in adultery, or that he has habitually treated her withcruelty, the Magistrate can make an order for maintenance under section2 notwithstanding the respondent’s offer to live with her. Clearly theburden of proving that the respondent is living in adultery or that hehad habitually ill-trea :ed her lies on the applicant, because the law willneither presume that he is an immoral man nor that he is a cruel husband.He has not to prove that he is no ; living in adultery or that he has notill-treated her. The legal presumption of innocence makes it unnecessaryfor him to establish these facts which must be proved by the personmaking these allegations and who wishes the Court to believe in theirexistence—ei incumbit probatio qui dicit, non qui negat.
Assume, however, that the husband makes no offer to resume marriedlife, but contests the applicant’s claim and, while admitting that she is hiswife, alleges under section 4 that she is living in adultery, surely it is forhim to prove that fact ? There is a presumption of innocence not onlyin regard to the commission of a crime, but also in regard to any allegationof wrong doing or immoral conduct. Take the allegation of fraud in acivil action. The Privy Council has held that fraud must be establish-ed by the party alleging it beyond all reasonable doubt—NarayananChettiar v. Official Assignee High Court, Rangoon The reason is becausethere is a presumption against any form of wrong doing or immorality..Therefore, the burden is on the person who alleges fraud or immoralityto prove it. It is not for t.ie applicant in a maintenance case to provethat she is not living in adultery. How is she to prove this negative
14. I. B (I941 P. C. 93 and nee Coomaraswamy v. Vinnayamoorthy (194S)■46 N. L. B. at p. 249.
264
DIAS J.—Selliah v. Sinnammah.
fact ? Section 4 of the Maintenance Ordinance does not say that thewoman must prove that she is not living in adultery. All that section 4enacts is that she should not be entitled to maintenance if it is provedthat she is living in adultery. Section 4 does not place the onuson her.
With respect, therefore, I find it difficult to concur in the principlelaid down in Vidane v. Vkkurrienika1 where it was held that “ no ordercan be made against the defendant as section 4 of the Ordinance statesexpressly that a wife who makes an application for an order against thehusband must be one who is not living in adultery and must not be livingseparately from her husband by mutual consent. All these facts have to befirst established by the wife, and the learned Magistrate was, therefore inerror in calling upon the defendant to establish his case before the appli-cant’s case was placed before the Court in accordance with law ”. I respect-fully agree that it would be improper for the Magistrate to call uponthe husband to establish his case before the applicant’s case was placedbefore the Court. If the procedure provided by the Ordinance is followed,that could not happen. It is a condition precedent to the issuing ofprocess that the Magistrate should be prima facie satisfied that a casefor inquiry exists. Even after the husband has appeared, the initial onusis still on the applicant to establish her case before the husbandiS called upon for his defence. But I cannot assent to the propositionthat before the respondent is heard, it is the duty of the applicant as partof her case to establish by proof that she is not living in adultery. There isno necessity for a person to prove that she is not living in adultery whenthe law presumes that she is living a chaste life. The burden of provingadultery under section 4 is on the person who asserts it, in the same wayas the burden of proving that the husband is living in adultery undersection 3 is cast on the wife.
It was laid down in Ebert v. Ebert ’, which was a maintenance case,that “ it is not possible to lay down any general rule, or to attempt todefine what circumstances would be sufficient and what would be insuffi-cient upon which to infer the fact of adultery. Each case must depend onits particular circumstances. It would be impracticable to enumeratethe infinite variety of circumstantial evidentiary facts which of necessityare as various as the modifications and combinations of events in actuallife”. The Magistrate has found that the appellant has not led anyspecific evidence of the fact that the applicant is living in adultery.I have read through the evidence, which merely shows that the husbandand wife parted because the lady displayed a tendency to talk to membersof the opposite sex. That, per se, is totally insufficient to establish adultery,and there is no other evidence. –
I see no reason to interfere with the Magistrate’s assessment of thequantum of maintenance payable by the appellant.
The appeal is dismissed.
Appeal dismissed.
»( 1946) 48 N. L. R. 256 ; 34 C. L. W. 21.
*{1921) 22 N. L. R. 312.