021-NLR-NLR-V-78-SOLOMON-FERNANDO-Defendant-Appellant-and-CHANDRALATHA-ABEYSEKERA-Applicant-.pdf
DEHERAGODA, J.—Solomon Fernando v. Chandralatha Abeysekera 119
Present: Deheragoda, J.
SOLOMON FERNANDO, Defendant-Appellant andCHANDRALATHA ABEYSEKERA, Applicant-Respondent
S. C. 237/71—M. C. Colombo 5516/A
Maintenance Ordinance—Illegitimate child—Corroboration of mother’sevidence—Section 6.
In an application for maintenance of an illegitimate child underSection 6 of the Maintenance Ordinance, the Magistrate ought inthe first instance to analyse the evidence very carefully and arriveat a firm finding as to whether he believed the applicant or thedefendant, before looking for independent corroboration of theapplicant’s evidence. The issue as to corroboration does not presentitself for adjudication where the Magistrate is of the view that theapplicant’s evidence is unreliable.
Turin vs. Liyanora (19511 53 N. L. R. 310 followed.
The entire approach of the Magistrate in regard to the questionof paternity of the child is wrong.
Appeal from an order of the Magistrate’s Court, Colombo.
A. H. C. deSilva, with Kenneth Shinya and Andrew
Somawansa, for the Defendant-Appellant-
Mark Fernando for the Applicant-Respondent.
Cur. adv. vult.
September 1, 1972. Deheragoda, J.—
The applicant-respondent (hereinafter called the “ applicant ”)filed this action against the defendant-appellant (hereinaftercalled the “ defendant ”) claiming maintenance for her illegiti-mate child Neranjani born on 5th December 1968, whose father,she alleged, was the defendant. A large volume of evidence hadbeen led both for the applicant and for the defendant, and thecase was keenly contested.
The case for the applicant was that in 1967 she was employedas a seamstress in a house where she made the acquaintanceof the defendant, who was a frequent visitor there, and who wasin affluent circumstances being the owner of a liquor shop atMoratuwa. He had promised to marry the applicant, and on16th September 1967 he had found for her a room in a house atDehiwala where the applicant lived as his mistress for aboutsix months. Her board and lodging were paid for by the defen-dant. On 4th March, 1968 they left this house and the defendanttook her to a house at Rawatawatta, Moratuwa, where he wasliving with his sister. About ten days after she went to livethere she realised that she was pregnant. His sister resented tohis having brought the applicant into this house and withinsixteen days of her having been brought there he had to take her
120 DEHERAGODA, J.—Solomon Fernando v. Chandralatha Abeysekera
to the house of one Alice Gunasekera who was known to theapplicant. She stayed there for a few days and on 8th April 1968she went to reside in the house of one Danawathie Siriwardenaat Attidiya. Here too, according to the applicant, her board andlodging were paid for by the defendant. As the date of herconfinement was drawing near she was taken by the defendantto an annexe at Hospital Road, Kalubowila, which he had rentedout for her. She stayed there till she gave birth to Neranjani on5th December 1968. She even said that the defendant took her upto the Kalubowila Hospital for her confinement, but that it wassomeone else who admitted her. After the birth of her child shewent to reside again with Danawathie Siriwardena. She addedthat the defendant made a payment of Rs. 100 on 10th January1969, after the birth of the child, but refused to maintain the childthereafter. She alleged that after this case was filed the defen-dant made an attempt to make her withdraw the case by offeringher Rs. 25,000, provided she married a man of his choice, namely,Jayasumana Perera who is a son of Danawathie Siriwardena.She married Jayasumana Perera expecting the defendant tohonour his promise, but he failed to do so.
The case for the defendent is that he was sexually intimatewith the applicant when he was living with her in a room in ahouse at Dehiwala, but ceased to have anything to do with herafter January 1968 when he discovered that the applicant wasa woman of loose moral character. His case is that he was notsexually intimate with her at or about the time the child Neran,jani could have been conceived.
The applicant was subject to very severe cross-examination,especially in regard to her past, and allegations were made thatshe had had illegitimate children earlier, which she denied. Shewas also asked whether, prior to meeting the defendant, she hadlived with one Raja and with one Albert Appuhamy, all of whichshe denied- Questions were put to her also to the effect thateven while she was living with the defendant certain otherpeople, among them defendant’s relatives, used to visit her andthat when the defendant came to know of these visits he brokeoff all relationships with her in January 1968. All these had beendenied by her and they remain, so far as her evidence goes, meresuggestions. The defendant led evidence of more than one witnessto establish the allegation that the applicant was living withRaja and Albert Appuhamy before she met the defendant, andthat she had at least one illegitimate child by one of them.
The defendant himself gave evidence to the effect that he hadnever promised to marry the applicant, that he had at no stagelived in his sister’s house at Rawatawatta with the applicant,
DEHERAGODA, J.—Solomon Fernando v. Chandralatha Abeysekera 121
and that even in the house at Dehiwala he found her associatingwith other men and he therefore stopped his visits completelysomewhere in January 1968. He denied that he offered Rs. 25,000as an inducement to the applicant to withdraw this case ; hedenied that he had paid or agreed to pay the applicant anymoney as maintenance for the illegitimate child.
The learned Magistrate, while ordering the payment of main-tenance at the rate of Rs. 25 per month, in the course of hisorder stated that he did not “ accept as the truth the entireevidence of the applicant ” and that she had not spoken thetruth with regard to the period prior to her meeting thedefendant. He accepted the evidence of the witnesses who hadspoken to the applicant’s relationships with Raja and AlbertAppuhamy prior to her meeting the defendant ; and apparentlyfor this reason he held that the applicant was “ a woman with achequered past whose morals were rather on the loose side. ”He therefore hesitated to accept the evidence of the applicant11 unless there is strong independent corroboration ”. He soughtto find this corroboration in two statements said to have beenmade to the Police by the defendant on 18th April 1968 and 28thJune 1968, marked P3 and Pll. P3 was a statement said to havebeen made by the defendant when the applicant had come to hisliquor shop and created a scene. In this statement he is recordedas having said, among other things, that he was keeping theapplicant as his mistress “ for the last six months ”. Thedefendant in his evidence has stated that he made this state-ment in Sinhala but it was recorded in English, and what hesaid was that he was keeping the applicant as his mistress for aperiod of six months. The learned Magistrate treated thisdocument as an admission that the defendant had kept the appli-cant as his mistress for a period of six months ending 18thApril 1968, and that, therefore, Neranjani could have been con-ceived during that period. He also held against the defendantthat he had not denied the paternity of Neranjani in that state-ment. In the statement Pll made on 28th June 1968 the defen-dant is alleged to have said that he had kept the applicant as hismistress and had given her up “ for the last two months ” as shewas of bad character. The learned Magistrate treated this docu-ment too as an admission that the defendant was living with theapplicant during the period she could have conceived Neranjani,
Learned counsel for the defendant submits that the entireapproach to the case by the learned Magistrate is wrong becausehe has shown a reluctance to accept the evidence of the applicantwhen he said that he hesitated to accept her evidence unless hefound strong independent corroboration. He argues that in theabsence of a finding on his part that he had in the first instance
122 DEHERAGODA, J.—Solomon Fernando v. Chandt a latha Abeysekera
accepted the evidence of the applicant he could not look forcorroboration. He cites in support the case of Turin vs. Liyanora(53 N.L.R. 310) where Basnayake J. referring to section 6 of theMaintenance Ordinance says that if the mother’s evidence doesnot convince the judge the question of corroboration does notarise. He adds : “ It appears from the case of Le Roux vs.Neethling, Juta (1891-1892) p- 247, that the rule under theRoman-Dutch Law was that the applicant who seeks to fix thepaternity of an illegitimate child on a man must clearly prove itand must be corroborated in some material particular. ”
There does not appear to be a firm finding by the learnedMagistrate on the oral evidence led for the applicant and forthe defendant, especially in relation to the period during whichthe applicant could have conceived the child Neraniani. bornon 5th December 1968. The relevant period, according to theapplicant’s evidence, was some time just before she left the roomin a house at' Dehiwala and was taken by the defendant to hissister’s house at Rawatawatta, Moratuwa, on 4th March 1968or immediately thereafter. The defendant totally denied that heever lived with the applicant in his sister’s house at Rawata-watta between 4th and' 20th March 1968.
It was incumbent on the learned Magistrate to analyse thisoral evidence very carefully and arrive at a firm finding as towhether he believed the applicant or the defendant, beforelooking for independent corroboration of the applicant’s evi-dence. Instead of doing so, the learned Magistrate has devoteda large portion of his order to considering the contents of docu-ments P3 and P 11 and has arrived at a finding that the defendantprovided the corroboration by the admissions contained in thesetwo documents.
Arguments and counter-arguments have been advanced beforeme both on the evidentiary value of these two documents andtheir admissibility without proper proof, but in view of theconclusion I have arrived at, it would not be necessary for meto consider these legal arguments. I agree with learned counselfor the defendant that the entire approach of the learned Magis-trate to the question of the paternity of the child Neranjani iswrong. I therefore set aside the order for maintenance madeby him and send the case back for a fresh inquiry beforeanother Magistrate.
I make no order for costs of this appeal.
Appeal allowed.