Tennekoon v. Tennekoon
Present: Wijayatilake, J. and Malcolm Perera, J.T.M. SITA KTJMARI TENNEKOON, Applicant-Appellant andT.N.R.B. TENNEKOON, Defendant-Respondent
S.C. 766/72—M.C. Mahawa 23920
Maintenance Ordinance Section 6—Corroborationof mother’s
evidence—“ at or about the time ” of sexual intimacy.—S. 157of the Evidence Ordinance.
Evidence—Impeaching the credit of a witness—Proof of formerstatements—Evidence Ordinance sections 145, 155.
Held: (1) When section 6 of the Maintenance Ordinance speaksof corroboration of the evidence of the mother, it must be taken toinclude any kind of corroboration which is recognized by our lawat the time when the applicant’s evidence is given.
The words * at or about the time ’ when the fact took place mustmean that the statement must be made at once or at least shortlythereafter when a reasonable opportunity for making it presentsitself.
The rule laid down in Dona Carolina v. Jayakoddy 33 N.L.R. 165that corroboration can in no case be afforded by happenings thatoccur after the cessation of sexual intimacy commented on.
What is meant by saying that the mother’s evidence must becorroborated is that there must be some evidence in addition to herevidence which she has given in court “ which in some degree isconsistent with her version and inconsistent with the innocence ofthe defendant —that is to say, there must be evidence thatimplicates the defendant or connects the defendant or tends toconnect him with the birth of the child. From the very nature ofthe case it will be impossible to have direct corroborative evidenceof sexual connection. Thus the evidence in corroboration will, inalmost all cases, be of a circumstantial character.
Section 145 of the Evidence Ordinance requires that if it isintended to rely on a previous statement to contradict a witness,his attention must be called to those parts of the statement whichare to be used for contradicting him. The witness must be affordedevery opportunity to address his mind to the relevant portions ofthe statement to enable him to explain or reconcile his statement.
MALCOLM PEREEA, J.—Tennekoon v. Tennekoon
Appeal against the order of the Magistrate.
R. S. R. Coomaraswamy with Fritsz Kodagoda and S. C. B.Walgampaya for the applicant-appellant.
Nimal Senanayake with Rohan Perera for the defendant-respondent.
Malcolm Perera, J.—
In this case the applicant-appellant sued the defendant-respondent for maintenance of an illegitimate male child namedRatna Bandar a Tennekoon who was born to her on 24th March,1972. Briefly, the appellant’s case was that from the beginningof the year 1969, there was an association between herself and thedefendant-respondent, who is her cousin. He used to v.sit herhouse regularly till the 15th of November, 1971. On the 28th ofJune, 1971, the defendant had sexual relations with her for thefirst time promising to marry her. Thereafter, the defendant hashad sexual relations with her on ten or fifteen occasions in herhouse.
It would appear that the appellant’s father was employed atGalgsmuwa and came home only for the week-ends, and hermother, for the most part of the day, was away, from home almostdaily during the relevant period as the applicant’s sister was illand warded in hospital. It is the appellant’s case that her loveaffair with the defendant was carried on without the knowledgeof her parents. It is her evidence that when she found that hermenstruation had not occurred in the month of July, 1971, sheforthwith brought it to the notice of the defendant and he sworethat if a child were to be born he would admit paternity. He hadfurther promised to attend to everything that would becomenecessary to be done.
The appellant, in her evidence, has stated that from thebeginning of 1969 the defendant had sent letters to her either bypost or through the hand of her younger sister. In June, 1970,she had received about fifteen letters, and she continued to saythat when two or three letters got collected he used to recoverthem from her and remove them. The appellant had sent herletters through her younger sister. The last letter from thedefendant was received in March, 1971. The defendant, when hevisited the appellant, used to open her suitcase and remove theletters. The last letter, too, was likewise taken away by him.
MALCOLM PERERA, J.—Tennekoon v. Tennekoon
Witness Dingiri Banda, giving evidence for the appellant, hasstated that in October, 1971, the defendant requested him to meetthe parents of the appellant and obtain their consent for thedefendant to marry the appellant. Dingiri Banda, however, hadadvised the defendant to pursue the matter in consultat.on withhis parents and elders. In November, 1971, the defendant hadrepeated his request to Dingiri Banda, and thereupon DingiriBanda met the appellant’s mother at her house and conveyedthe defendant’s request. The appellant’s mother rejected theproposal. This evidence has been wholly supported by thetestimony of the appellant’s mother.
The learned Magistrate, who saw the witness and heard him,has stated in his order that Dingiri Banda may be giving trust-worthy evidence.
The defendant gave evidence and denied paternity of thechild. He stated that he had never visited the appellant’s house.He had not even spoken to her though she lives only 70 fathomsaway from her house and for some time went to the same schoolthat the defendant had attended. He denied that he wro‘e anyletters to the appellant. He stated that the parents of theappellant had never met his parents to discuss the question ofhis marriage with the appellant. His evidence was supported bythe testimony of his father.
The learned Magistrate rejected the evidence of the appellanton the following grounds: —
That in D1 and D2 the appellant had stated that she had
handed over her letters to the defendant at theconference held between the parents of the two parties.In her evidence she had stated that when two or threeletters were collected the defendant used to take themaway.
That the defendant took the letters, when he came to
her house, from her suitcase.
That the last letter was received in March, 1971, but the
defendant came to her house for the first time in June,1971.
The learned Magistrate stated that the applicant was unableto say which of the versions is the correct one. Further, thelearned Magistrate went on to state that the evidence of theapp'icant’s mother with regard to'*he visits of the defendant wascontradictory and that the evidence of witness Wiiesekera, farfrom corroborating her evidence, contradicted the applicant.
MALCOLM PERERA, J—Tenne/coon v. Tennehoon
Now, considering (a) and (£>), it would be appropriate at thisstage to examine the legal provisions with regard to impeachingthe credit of a witness by proof of former statements which areinconsistent with any part of his evidence. Section 155 of theEvidence Ordinance provides that the credit of a witness may beimpeached, inter alia, by proof of former statements inconsistentwith any part of his evidence which is liable to be contradicted.However, that section is silent as to the manner in which theformer statement is to be proved or the procedure to be adopted.The mode of proof of such a written statement, when it is soughtto be tendered in evidence for contradicting a witness, is foundin section 145 of the Evidence Ordinance.
Section 145 (1) reads as follows :
“A witness may be cross-examined as to previous state-ments made by him in writing or reduced into writing andrelevant matters in question without such writing beingshown to him or being proved ; but, if it is intended tocontradict him by the writing, his attention must, before thewriting can be proved, be called to those parts of it whichare to be used for the purpose of contradicting him. ”
Section 145 requires that if it is intended to put such writingto contradict a witness, his attention must be called to thoseparts of the statement which are to be used for contradicting him.The witness must be afforded every opportunity to address hismind to the relevant portion of the statement and every occasiongiven to him to explain or reconcile his statements. If such anopportunity is not given to the witness, the contradictory writingcannot properly be admitted in evidence. The witness must betreated with fairness and should be afforded every opportunityof explaining the contradictions after his attention has beendrawn with clarity and in a reasonable manner. It is a questionof fact in each case whether there has been a substantialcompliance with* the requirements of section 145.
On a careful examination of the evidence of the applicant andthe documents D1 and D2, it would be seen that the requirementsof section 145 have not been as strictly followed as the circums-tances of this case demand. When the appellant denied havingmade certain statements to the Grama Sevaka, those particularpassages were not specifically put to her. Hence, she has beendenied the opportunity to explain or reconcile the statementsalleged to have been made by her.
With regard to (c) I am constrained to state that the learnedMagistrate has completely misdirected himself on the facts. It isthe clear and unambiguous evidence of the applicant that the
MALCOLM PERERA, J.—Tennekoon v. Tennekoon
defendant had been regularly visiting her home from 1969 tillthe 15th November, 1971. Therefore, the learned Magistrate haserred on the facts when he states in his order that the defendantcame to her nouse for the first time in June, 1971. What theappellant did say was that the defendant had sexual relationswith her for the first time in June, 1971. Further, the learnedMagistrate says that the applicant’s evidence contradicts thetestimony of her mother with regard to the defendant’s visits. Ona careful examination of the evidence of the mother and thedaughter, I cannot say that there is any contradiction betweenthe two on this matter.
With regard to the learned Magistrate’s assessment ofWijesekera’s evidence, I cannot agree that it conflicts with thetestimony of the applicant. Wijesekera’s evidence, briefly, is thathe is the son of the applicant’s mother’s younger sister. He is acarter, and in the course of his normal work he has to pass theapplicant’s house which he did almost daily. His younger sisterwas living in the house of the applicant in order to go to school,and it was usual for him to drop in at the applicant’s house tosee his sister. On certain occasions he had seen the defendantin the house of the applicant when her parents were not in thehouse. This being the evidence, I fail to see how the learnedMagistrate is able to state that Wijesekera’s evidence does notsupport the applicant’s case, but contradicts the applicant’stestimony.
After carefully analysing the evidence I am of the view thatthe learned Magistrate is not justified in rejecting the evidenceof the applicant.
The next question that I have to examine is whether there was' other evidence ’ to corroborate the applicant in some materialparticular, as required by section 6 of the Maintenance Ordinancein order to justify a claim for maintenance.
The relevant portion of that section reads as follows : “
and no order shall be made on any such application as aforesaidon the evidence of the mother of such child unless corroboratedin some material particular by other evidence to the satisfactionof the Magistrate. ” What is meant by saying that the mother’sevidence must be corroborated is that there must be someevidence in addition to the applicant’s evidence which she hasgiven in Court “ which in some degree is consistent with herversion and inconsistent with the innocence of the defendant ”.That is to say, there must be evidence that implicates thedefendant or connects the defendant or tends to connect him.
MALCOLM PEREBA, J.—Tennekoon v. Tennekoon
What is meant by corroborat.on in some material particular ?The vital fact to be proved in an application for maintenance ofan illegitimate child is tnat that cmid Las been begotten as aresult of sexual intimacy with the defendant. From the verynature of the case, it will be impossible to have direct corrobora-tive evidence of sexual connection. Thus, the evidence incorroboration will, in almost all cases, be circumstancial evidenceof the main fact, namely, sexual connection. In this case theapplicant-appellant relied on the statement she had made toher mother in December, 1971, namely, that she was pregnantand the defendant was the father of the child. This statementwas admittedly made some weeks after the defendant hadceased to visit the applicant.
Section 157 of the Evidence Ordinance provides that a formerstatement of a witness relating to a fact which is the subject of asubsequent judicial inquiry, if made at or about the timewhen the fact took place, may be proved for the purpose ofcorroborating the evidence of that witness.
No doubt, the Evidence Ordinance is later in date to theMaintenance Ordinance. However, when the section speaks ofcorroboration of the evidence of the mother, it must be takento include any kind of corroboration which is recognised by ourlaw at the time when the applicant’s evidence is given. No doubt,the corroborative value of the statements depends upon thecircumstances of each particular case. The party seeking to provethe statement must establish by clear and unequivocal evidencethe proximity of time between the happening of the fact and themaking of the statement. In this regard a hard and fast rulecannot be drawn, but a deciding fact would be whether thestatement was made as early as can reasonably be expected inthe given situation of a case and before there was an opportunityfor fabricating or tutoring.
The words ‘ at or about the time ’ must mean that the state-ment must be made at once or at least shortly thereafter when areasonable opportunity for making it presents itself. The sectiondoes not contemplate the admission of a statement made longafter the happening of the event. What is a reasonable time, ofcourse, would depend on the circumstances of each case. Thus,in India it has been held that an entry in a Vaccination Registerwhich includes a statement by a woman that a person bearingthe name of the alleged father of an illegitimate child was thefather of the illegitimate child, made three years after its birth,does not satisfy the terms of section 157 of the EvidenceOrdinance and is not, therefore, admissible in evidence—videKanniappan v. Kullammal, AJ.R. 1930 Madras 194.
MALCOLM PERERA, J.—Tennekoon v. Tennekoon
Mr. Rohan Perera, learned Counsel for the defendant-respon-dent, drew our attention to the fact that the statement was madeby the appellant in this case to her mother in December, 1971.It was his contention that th-s statement would not amount tocorroboration as it was belated and hence not made ‘ at or aboutthe time
have given this argument the anxious consideration that itwell deserves, and I must confess that I cannot assent to it in thelight of the facts of this case.
In the case of Angohamy v. Kirinelis Appu, 15 NLR 232, whereit was proved that within a few months after conception theparents of the mother discovered her condition and then she gavethe name of the defendant as the father of the child, WoodRenton, J. held : “ In the present case the evidence shows thatwithin a few months after conception, and when her conditionwas discovered, the respondent made a statement to her parents,who, on their part, complained to the Police Vidane. Under thesecircumstances it may fairly be said that the previous statementwas made at a point of time sufficiently near to the fact, whichthe Court had to ascertain to make it admissible undersection 157. ” (At page 233). This case was considered by a FullBench of three Judges in the case of Ponnammah v. Seenithamby,22 NLR 395. Bertram, C. J., in considering section 157, referredto the case of Anghohamy v. Kirinelis Appu and stated thus:“ In that case the evidence showed that within a few months ofconception and when her condition was discovered, the womanmade a statement to her parents. Wood Renton, J. observes thatthe words ' at or about ’ were relative terms. Of course, in anycase, it must be a question of fact whether one event is at orabout the time of another. Personally, I feel a difficulty in follow-ing this pronouncement that a statement made by a womanwithin a few months after conception is made * at or about thetime ’ of the material fact under consideration, namely, the allegedsexual intimacy between the parties, unless, of course, if it wereshown that the sexual intimacy continued after conception anddown to about the time of the complaint. ”
Now, what are the relevant facts of the present case? Theyare—that the first act of intercourse was in June, 1971; thatconception took place in July, 1971; that the defendant, on beinginformed of the condition of the applicant, promised to admitpaternity and do everything necessary ; that after conception itwas brought to his notice that the applicant had conceived, thedefendant continued to visit her, and that since June, 1971, hehas had sexual intercourse with the applicant on ten or fifteen
MALCOLM PERERA, J.—Tennekoon v. Tennekoon
occasions ; that the defendant continued to visit the applicanttill the 15th of November. Surely, these facts disclose “ thatsexual intimacy continued after conception and down to aboutthe time of the complaint
I think at this point I should refer to the case of DonaCarolina v. Jayakoddy, 33 NLR 165, where Garvin S.P.J., heldthat a statement made by the mother of an illegitimate child asregards its paternity after cessation of sexual relationswith the alleged father is not corroboration of her evidence. Inthat case the Magistrate went on the applicant’s own evidencethat the statement was made after cessation of sexual relations.Thus, it was a case in which it was possible to show that sexualintimacy did not or could not have continued down to or aboutthe time of the making of the statement which is intended to beproved.
But, in the instant case, as I mentioned earlier, the defendantcontinued to visit the applicant till the 15th of November, thatis, for about four months after conception. Thus, the statement ofthe applicant-appellant to her mother in December, in thecircumstances of this case, I think, was made about the time ofsexual intimacy. In the case of Dona Carolina v. Jayakoddy(supra), it was further held that the conduct of the mother withreference to the scenes created in the presence of the respondentafter sexual relations had ceased does not amount to corrobo-ration of her evidence. Garvin, S.P.J., stated : “ These incidentstook place many months after conception and after sexualrelations, if they ever did exist, had, on the applicant’s ownevidence, ceased. Any designing woman may create such a sceneat the house of the man she desires to accuse as the personresponsible for her condition, and it is manifestly unsafe to treatsuch conduct as sufficient corroboration of her evidence as topaternity Such evidence does not, in my opinion, satisfy therequirements of section 7 of Ordinance No. 19 of 1889 as tocorroboration ”.
I find myself unable to regard that case as laying down a rulewith such inflexibility as to say that corroboration can in nocase be afforded by happenings that occur after the cessation ofsexual intimacy. In my view, section 6 of the MaintenanceOrdinance does not in any way place any limits as to the type orthe nature of evidence corroborative of the mother of the child.What that section requires is that there must be corroboration ofthe mother’s evidence which is given in Court by her by someother evidence in some material particular which satisfies theMagistrate. In the case of Gooneratne v. Babie, 50 NLR 23,Basnavake, J. (as he then was) said : ‘‘ In regard to certain
MALCOLM PEEERA, J.—Tennekoon v. Tennekoon
incidents which occurred after the conception, I think, I shouldrefer to the case of Dona Carolina v. Jayakody which learnedCounsel cited. That case cannot, in my view, be regarded aslaying down a rigid rule that corroboration can in no case beafforded by incidents which take place after sexual relationsceased
In the case of Thomas v. Jones, 1921 1. K. B. 22, section 4 of theBastardy Laws Amendment Act of 1872 came up for conside-ration. That section provides that the Justices “ shall hear theevidence of such woman and such other evidence as she mayproduce, and shall also hear any evidence tendered by or onbehalf of the person alleged to be the father, and if the evidenceof the mother be corroborated in some material particular byother evidence to the satisfaction of the said Justices, they mayadjudge the man to be the putative father of such bastardchild ”.
Scrutton, L. J., in his dissenting judgment (at page 39) said :
“ What is meant by corroboration in some material particular—that is, in a material fact ? The vital fact to be proved in abastardy case is that a child has been born to the applicant as aresult of sexual connection with the man. From the nature ofthe case it is almost inevitable that there will never be any directcorroboration of sexual connection. The evidence in corrobora-tion must always be circumstantial evidence of the main fact,that is to say, evidence from which it may be inferred that themain fact happened. For instance, the fact that the man hashad sexual connection with the woman and a child has resulted,is sometimes inferred from evidence of previous affection, thatthey have been seen together, showing affection to each other.Sometimes, it is inferred from the fact of subsequent affection—that the man and woman are seen together showing signs ofaffection. Sometimes, it is inferred from the fact that the manhas done acts which may be treated as recognising responsibilityfor the child as his child, statements that he will provide for thechild, payments for the child, all facts from which, as a matter ofinference and probability, it is more probable that intercoursedid take place than not. I quite agree with what Bankes, L. J. hassaid that if the fact is such that the probabilities are equal oneway or the other, an inference cannot legitimately be drawn fromit one way or the other
After considering the above-mentioned portion of thejudgment of Scrutton, L. J., De Waall, Judge President adoptedit in the case of Van Der Merwe v. Nel, 1928 to 1929 T^P. D. 551and said : “ Corroboration may therefore be evidence as to whattook place at the time of the alleged seduction. It may be that of
MALCOLM PERERA, J.—Tennekoon v. Tennekoov.
an eye-witness. That, of course, would be conclusive corrobora-tion of the evidence of the woman. It may be evidence as to theincidents that happened prior to the alleged seduction, or whichhappened after the alleged seduction. One such instance of anincident happening after the alleged seduction is to be found inthe case of Jacob v. Henning to which I have already referred,where the only evidence of corroboration which was found bythe Court to be sufficient was that the defendant, on beingremonstrated by the parents of the plaintiff, said nothing andhung his head. The Court, holding that that was sufficientcorroboration in law, justified it in finding for the plaintiff
This view of De Waall, J. P. prescribes the precise bounds ofcorroborative evidence that may be adduced by an applicantin an application for maintenance under our MaintenanceOrdinance. In the case of Gooneratne vw Babie, Basnayake, J.,referring to the case of Van Der Menoe v. Nel, had this to say :“ The case of Van Der Menoe v. Nel contains a full discussionwith reference to English, Scottish and South-Africandecisions on the question ol corroboration in proceedings formaintenance. The view expressed by De Waall, J. P., in thatcase that corroboration may be afforded by evidence as to theincidents at the time of the alleged sexual intimacy, prior to it,or after it, in my opinion, lays down the true limits of corrobo-rative evidence that an applicant under the MaintenanceOrdinance may rely on ”.
Another feature in the present case is the fact that thedefendant, in giving evidence, stated that he never visited thehouse of the applicant-appellant though he was living onlyseventy fathoms away and he was a close relative ofthe applicant. I am not unmindful of the evidence that therewas some family displeasure. He even stated that he had notat any time spoken to the applicant although they were forsome time attending the same school contemporaneously. Imust admit that I find it difficult to believe the defendant’sevidence on this point. These statements of the defendant are,in my view, false.
Mr. Coomaraswamy submitted on behalf of the applicant-appellant that the false statements of the defendant should betaken as items of corroboration of the applicant’s evidence. Thequestion for consideration, therefore, is whether these false state-ments afford corroboration of the applicant’s version. It cannotbe the case that if the statements of a defendant were to be false,they could always be regarded as corroboration of the applicant’sevidence. If that were the position, it might as well be said thatthe evidence of a defendant where he denied that he was the
MALCOLM PEftERA, J.—Tennekoon t>. Tennekoon
father of the child would afford as corroboration, and, for thatmatter, any case presented by a defendant which is disbelievedmay be regarded as corroboration of the mother’s evidence.
Whether the defendant’s conduct in making false statementswill or will not amount to corroboration must depend upon thefacts and circumstances of each case, as was stated by LordGoddard L. C. J., Credlan v. Knowler (35 Criminal AppealReports 48) : “ In other words one has to look at the wholecircumstances of the case. What may afford corroboration in onecase may not in another. It depends on the nature of the rest ofthe evidence and the nature of the lie that was told. ” (Atpage 55).
In the case of Jones v■ Thomas, L. R. 1934 1 K. B. 323 at 327,
Lord Hewart, C. J., stated thus : “the conduct of the
alleged father may amount to corroborative evidence where itappears that there is reason to infer from such conduct that themother’s story is presumably true, as in Mash v. Darley andThomas v. Jones and in the Scottish case of Dawson v.McKenzie. ” In the case of Dharmadasa v. Gunawathie, 59 NLR501, T. S. Fernando, J., had this to say of this concise statementof Lord Hewart: “ If I may say so, with respect, the matter wasput succinctly and correctly by Lord Hewart C. J.
The question whether false statements made by a defendantin a maintenance case amount to corroboration of the applicant’sevidence came up for consideration in the case of Warawita v.Jane Nona, 58 NLR 111. The facts in regard to false statementshave been set out as follows :
“ But there is an aspect of the evidence given by the defen-dant, as compared with that given by the applicant, which seemsto me to be decisively in the applicant’s favour. It is clear thatthe defendant was not speaking the truth when, he said that theapplicant came to live on this land only in 1945, that it was to theapplicant’s sister and not to the applicant that he sent thewritten instructions regarding the working of the land in 1941,and that the applicant was known as Caroline and came to beknown only later as Jane. In themselves these details were notvery important, and if the defendant had spoken the truth inregard to them it might have been difficult to say that therelationship between him and the applicant was anything morethan that of an employer and employee. Parlis’ evidence mightthen have been merely of an equivocal nature and it might wellhave been argued that the evidence established only the mereopportunity for intimacy. The situation is different when itbecomes clear that the defendant has been lying on thesematters. He has attempted to disclaim any knowledge of the
MAX/COLM PEBERA, J.—Tennekoon v. Tennekoon
applicant prior to 1945, obviously in order to render it impossiblefor him to be the father of the two elder children, and highlyimprobable that he is the father of the two younger children
Sansoni, J., applied the principles enunciated in Jones v.Thomas and Credlan v. Knowler (Supra).
He said:“ Applying these principles, I think, the false
statements made by the defendant remove any doubt that mayhave existed on the question of corroborative evidence and Idismiss this appeal”.
From the false statements of the defendant in the presentcase, is there any reason to infer that the applicant’s story ispresumably true ? Having carefully examined these false state-ments, I am of the view that they are of such a nature and madeunder such circumstances as to erase any doubt that may haveexisted in my mind on the question of corroborative evidence.
As was stated by Lord Bunedin in Dawson v- McKenzie, (190845 Scottish L. R. 473) quoted by Lawrence, J. in Thomas v. Jones(Supra) :“ It is not that a false statement made
by a defender proves that the pursuer’s statements are true, butit may give a proved opportunity a different complexion fromwhat it would have borne had no false statement been made
In the instant case, quite apart from the statement of the appli-cant to her mother and the false statements of the defendantabove-named, I think, the unimpeachable evidence of Din girlBanda, to which I have already referred, more than amplycorroborates the applicant’s evidence on material particulars.
In the result, this appeal must succeed. I therefore allow theappeal and set aside the order of the learned Magistrate andhold that the defendant is the father of the child Ratna BandaraTennekoon. The applicant, in her application for maintenancehas prayed for a siim of Rs. 40 per month as maintenance for herchild. Accordingly, I order the defendant to pay a sum of Rs. 40per month as maintenance for the child Ratna Bandara Tenne-koon. The defendant iS'- further ordered to pay costs in theMagistrate’s Court in a sum of Rs. 50 and also costs of thisappeal in a sum of Rs. 250.
Wijayatilake, J.—I agree.
T. M. SITA KUMARI TENNEKOON, Applicant- Appellant and T. N. R. B. TENNEKOON, De