045-NLR-NLR-V-04-SUBALIYA-v.-KANNANGARA.pdf
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SUBALIYA v. KANNANGABA.
P. C., Balapitiya, 17,054.
1899.
January 31.
Maintenance order in Police Court case—Res judicata—Civil liability of fatherto maintain hie illegitimate child—Right of mother to sue the fathercivilly.
A Police Magistrate having condemned the putative father of a childto maintenance, the Supreme Court quashed the order on the groundthat it had not been proved that he had neglected or refused to maintain it.
Held, that this order was not res judicata as regards the question ofpaternity; and that, if the Magistrate’s order was quashed because it hadnot been proved that the infant was the child of the appellant, it wouldhave been a bar to any subsequent application.
But the question whether the father refuses or neglects to maintainhis child is one that may be raised from time to time, according to thecircumstances of the case.
Per Bonser, C.J.—The foundation of the jurisdiction of the PoliceCourt in matters of maintenance is the civil liability of the fatheralready existing under the Roman-Dutch Law, wherein the mother canon behalf of the child compel the performance of this duty by a civilaction. The Ordinance No. 19 of 1889 provides a simpler, speedier andless costly remedy.
Rarikira v. Kiri Hattena (2 C. L. R. 86) questioned.
I
N this case of maintenance, when defendant was called uponto “ show cause why he should not be convicted,” he referred
to an order made by the Supreme Court in case No. 16,395,whereby the order of the Police Magistrate directing the defendantto pay Bs. 3 monthly to the complainant for the maintenance ofher child was discharged.
The Police Magistrate, finding that the judgment of the SupremeCourt not merely discharged the order of the Police Court, butquashed it, resolved “ to continue those proceedings and make anorder in the case.”
After the case for the applicant was closed the Magistraterecorded as follows: ‘ ‘ The defendant makes no statement noroSers himself to be examined in defence, or calls any witnesses.”The Magistrate, therefore, condemned the defendant to pay Bs. 3per month to the applicant for the maintenance of the child.Defendant appealed.
Van Langenberg, for appellant, cited Rankira v. Kiri Hattena{1 0. L. R. 86).
No appearance for respondent.
31st January, 1899. Bonser, C.J.—
This is an application by a young woman for a maintenanceorder against the appellant-, whom she alleges to be the father ofher illegitimate child.
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1899.
January 81.Bonbbb, C.J.
The appellant appeared at the hearing of the application, andby his proctor contended that the application was barred, and thatthe matter was res judicata and could not be re-opened. TheMagistrate decided against him, and the appellant took no furtherpart in the proceedings. The Magistrate heard the applicationand decided that the defendant was the father of the child, andthat he did neglect and refuse to maintain it, and made the orderappealed from.
The first question was whether the contention of the appellant,that the matter was res judicata, can be sustained or not. Itappears that a previous application had been made by the motheragainst the appellant, which was allowed. The appellant thenappealed to this Court, and the order was quashed, not on theground that the appellant was not proved to be the father of thechild, but on the ground that it had not been proved that theappellant had neglected or refused to maintain it. Now, with allrespect to my learned brother who so decided, I must confess thatI cannot follow the reasoning by which he arrived at this result.It would appear, according to the statement of the mother, that shebeing a girl of fifteen or sixteen was seduced by the appellant. Hermother apparently knew of this and did not object. When thechild was bom, the appellant professed himself willing to marryhet, but her father and her brothers refused to allow the marriagebecause they disapproved of the character of the appellant. Thejudgment contains these words: —‘ ‘ It was not the appellant who“ broke oS the marriage. How then can it be said that he refused“ or neglected to maintain the child in those circumstances?”Now it seems to me that he did refuse and neglect to maintainthe child, for he was willing to maintain it only on condition thathe should be allowed to marry the mother, a condition which, inmy opinion, he had no right to impose. If a man of bad characterseduces a girl, he surely would not escape all responsibility forthe maintenance of his child because the father refuses to committhe welfare of his child into unworthy hands. However this maybe, it seems to me to be quite clear that there was no decisionupon the merits of this case adverse to the mother. I venture tothink that the opinion of Mr. Justice Clarence, in the case ofRankin v. Kiri Hatana (1. G. L. R. 86), that proceedings underthis Ordinance are of a civil nature, is to be preferred to that ofthe other members of the Court w'ho took part in the decision.The late Chief Justice based his judgment upon what appears tome to be an obvious misstatement of the law. He says thatthere is no civil liability on the father to support his illegiti-mate family. Now Voet (lib. '25, tit. 3, sec. 5) thus states the
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law:—Inter eog qui ad alimenta prcestanda ex officio pietatisdevincti sunt, sic ut ad id cogi possint, et ea negantes necarevideantur ex primo loco occurrit pater; quippe qui liberos aleretenetur sive suos sive eniancipatos; sive ligitime natos sive natu-rales. He further goes on to say that the liability extendseven to the father’s heirs. The same law is laid down in VanLeeuwen’s Censura Forensis, bk. I., chap. X., sec. 1. It seemsto me that the mother can on behalf of the child compelthe performance of this duty by a civil action. The Ordinanceprovides a simpler, more speedy, and less costly remedy. Itseems to me that the foundation of the jurisdiction of a PoliceCourt in these matters is the civil liability already existing—theOrdinance simply provides a speedier process. That being, sothere is no principle on which it can be said that the order of theCourt made on a former application is a bar to a subsequentapplication. There has been no decision in the present case, asI said before, adverse to the mother. If this Court had held thatthe order must be quashed because it had not been proved thatthe child was the child of the appellant, then I should have beenof opinion that the order would have been a bar to any subsequentapplication: that would have been a determination once and forall of a fact which is the foundation of the proceedings. But thequestion whether the father refuses or neglects to maintain hischild is one that may be raised from time to time according tothe circumstances of the case, as I intimated in a recent case,Gun-ahami v. Amolishami (3 N. L. R. 12S).
Then the question arises, ought the Court to interfere with theproceedings of the Magistrate in this case? I am asked to sendthe case back in order that the appellant may litigate the matterand produce evidence as to the paternity of the child. Two PoliceMagistrates who heard the case have found as a fact that theappellant is the father of this child. It is true that on the secondoccasion the appellant took no part ir the trial after his plea ofres judicata was over-ruled.
He did not ask for a postponement in order o appeal and takethe opinion of this Court as to the Magistrate’s decision over-rulinghis plea, but he allowed the case to proceed.
In these circumstances, I do not think that it would be right tosend the case back tc allow the appellant to adduce . idencewhich he deliberately refrained from adducing when he had theopportunity of doing so.
1899.
January 81.Bosses, C.J.