036-SLLR-SLLR-1981-1-THAVANAYAKI-v.-MAHALINGAM.pdf
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Thavanayaki v. Mahalingam
391
THAVANAYAKI
v.MAHALINGAM
SUPREME COURT
SHARVANANDA, J., WIMALARATNE, J.,
& RATWATTE, J.,
S. C. APPEAL NO. 64/80C. A. APPEAL NO. 741/78M. C. POINT PEDRO NO. 14572NOVEMBER 6,1981
Maintenance — Marriage by Hindu rites — Paternity — Maintenance for applicant —maintenance for child —Corroboration s. 6 of Maintenance Ordinance — s. 157 of Evi-dence Ordinance.
The failure of the applicant to establish a marriaget>y Hindu rites can-affect only herclaim for maintenance but this will not entail automatic rejection of the evidence inregard to paternity.
It is well settled that the requirement of .$. 6 of the Maintenance Ordinance that inorder to justify the award of maintenance, the evidence of the mother should be corro-borated in some material particular by "other evidence" is satisfied by any kind ofcorroboration admissible in law, including previous statements made by the mother tothird persons and admissible under s. 157 of the Evidence Ordinance subject of course tothe limitations stipulated in that section that such statements are made at or about thetime the sexual intimacy was continuing between the parties.
The corroborative value of such previous statements can of course be of varyingcharacter dependent upon the circumstances of each case.
What is required in a maintenance case is that the totality of such items of corrobo-rative evidence must be such as to satisfy the Magistrate that the evidence of the motherthat the child begotten has been the result of her intimacy with the respondent is thetruth and nothing but the truth. The corroborative evidence should be to the satisfactionof the Magistrate. The evidence of opportunity, the evidence of previous statements andthe evidence of the conduct of the respondent can constitute satisfactory corroboration.
Cases referred to:
11) Angohamy v. Kirinelis Appu (1911) 15 NLR 232.
Ponnammah v. Seenithamby (1921) 22 NLR 395.
Mahesan v. Chellammah (1939) 19 CL Rec31.
Wijeratne v. Kusumawathie (1948) 49 NLR 354.
APPEAL from Judgment of the-Court of Appeal.
A. Thevarajah for applicant-appellant.
V. S. A. Puiienayagdm for respondent-respondent.
Cur. adv. vult
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(1981) 1 S. L. R.
December 1,1981.
WIMALARATNE, J.
The applicant claimed maintenance from the respondent allegingthat they were married according to Hindu customary rites, that afemale child Imayalini was born on 28.1.76 and that the respon-dent who was the father of the child failed to maintain them. Therespondent denied marriage and paternity. At the trial the appli-cant failed to establish a marriage according to Hindu rites, butled evidence to show that she lived in the respondent's house onterms of intimacy for about six years before the child was born.The learned Magistrate, whilst refusing her application for mainte-nance for herself, held that her evidence of intimacy with the res-pondent was corroborated in material particulars by other evi-dence to his satisfaction, and ordered a sum of Rs. 50/- per monthas maintenance for the child.
The respondent appealed, and the Court of Appeal allowed hisappeal for the reason that the Magistrate, in attempting to answerthe question regarding the paternity of the child,"starts on a falsepremise that the applicant's position was that she was factuallymarried, and she had a belief that there was a de facto marriage.There was no justification for this assumption.'' The Court ofAppeal also formed the view that there was no satisfactory evi-dence to corroborate the evidence that she and the respondentwere on terms of intimacy, and that the child was begotten inconsequence.
Learned Counsel for the applicant-appellant had contended thatthe Court of Appeal has erred on both matters, and it seems tous that Counsel's contention ought to prevail. It is true that theapplicant came to court alleging that she was factually married tothe respondent according to Hindu rites. It is because she failed toestablish such marriage that the Magistrate refused her applica-tion for maintenance for herself. But it does not necessarily followthat her evidence that she was on terms of intimacy with therespondent in the belief that she was married ought automaticallyto have been rejected, for to do so would be to penalise an inno-cent child in' whose favour maintenance was claimed. The learnedMagistrate has not assumed a de facto marriage. On the contraryhe has proceeded to determine the question as to whether appli-cant and respondent were on terms of intimacy, and has thereafterlooked for corroboration of her evidence. It is therefore necessaryto determine whether the Magistrate was justified in accepting theapplicant's evidence.
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Thavanayaki v. Mahal ingam
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Briefly the facts are these. The applicant is the youngest daugh-ter of one K. Kandasamy, whose wife died about 1969. As herother brothers and sisters were married and living separately, shewas looked after by her mother's brother Thamotherampillai whoresided in the adjoining house with his wife and two unmarriedsons, the younger of whom was Mahalingam, the respondent. Shewas about 16 years and Mahalingam who was about 20 was yet astudent but was also helping his father in his cultivation. Althougha common fence separated the two houses, a gate provided easyaccess from one house to the other. The applicant stated that itwas her uncle Thamotherampillai who after her mother's deathinvited her to live in their house on the promise that Mahalin-gam would be married to her, and that Mahalingam's parentsaccepted her as their daughter-in-law. Having seen and heard boththe applicant and Mahalingam in the witness box the learnedMagistrate has accepted the evidence of the applicant. He hasexpressed the view that "considering the relationship between theparties her (the applicant's) failure to prove a valid marriage inkeeping with modern law does not make her a liar and therebydestroy her genuine belief that she was married to the respon-dent," because according to ancient Hindu custom where a girlthinks that another person is her husband and if there is an unders-tanding between them they were considered validly married. Itseems unnecessary for present purposes to embark upon ananalysis of the requirement of a valid marriage according toancient customs among the Hindus. It would suffice to note thatafter seeing, and hearing the witnesses the Magistrate was quitesatisfied that the applicant was virtually living in both houses,that she was treated as their daugther-in-law by the respondent'sparents, and that she and the respondent lived together as husbandand wife for a period of about six years before the child was born.
Having accepted the applicant's evidence of the fact of inti-macy with the respondent the learned Magistrate has looked forcorroboration "in some material particulars to his satisfaction'' asrequired by section 6 of the Maintenance Ordinance (Cap. 91).There was no direct evidence of corroboration of the fact of inti-macy but three items of circumstantial evidence appear to havesatisfied the Magistrate. They were evidence of opportunity, evi-dence of previous statements made by the applicant to othersand evidence of the conduct of the respondent and of hermother.
The applicant's evidence, that she virtually, resided in the res-pondent's house received corroboration from two independentwitnesses, Chandrasekera, a teacher who was a stranger, and
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Nagaratnam, a farmer who lived close by. Their testimony wasbelieved by the Magistrate, and their evidence went a long way toshow that the applicant was very often in the respondent's house.The applicant and respondent were of marriagable age, and relatedas first cousins. In fact the respondent's elder brother was at thesame time engaged to be married to the daughter of anotherbrother of Thamotherampillai. The respondent produced somehouseholder's lists according to which the applicant's name appea-red as a member not of Thamotherampillai's household but of herfather Kandasamy's. The Respondent said in evidence that afterher mother's death the applicant resided in a different village,Atchuvely from 1969 to 1976, and that for about 8 or 9 years hehad not even spoken to her. The Magistrate has disbelieved the res-pondent, and it would be wrong for an Appellate Court on areading of the depositions alone to reverse a Magistrate's findingon a question of fact of that nature.
The second item of corroboration consists of certain previousstatements made by the applicant. The Magistrate has believedthat when she was pregnant the applicant told the respondent thatshe was pregnant by him, and that the respondent told her that"somehow or other he will accept me in January (1976)". She alsotold the respondent's mother of her condition, and the mothertook her to a native physician and obtained medicine for thepurpose of destroying the foetus. On 11.11.75 she was sevenmonths pregnant. When she informed her father he drank aninsecticide and committed suicide because of the disgrace she hadbrought upon the family. On that date the respondent and hisbrothers and parents had joined in driving her out of their house.An inquest was held on the death of Kandasamy. The applicanttold the coroner in evidence that she had been on terms of inti-macy with the respondent for 8 months.
Learned Counsel for the respondent has attacked the receipt bythe Magistrate as corroboration of any previous statements madeby the applicant, and has contended that if such previous state-ments are not acted upon, then there is no evidence to-corroboratethe applicant's evidence in any material particulars.
It is often said that a witness cannot corroborate himself. Hencethere is an old general rule in English Common Law under which awitness may not be asked in chief whether he has formerly made astatement consistent with his present testimony. He cannotnarrate such statement if it was oral, or refer to it if it was inwriting (save for the purpose of refreshing his memory) and otherwitnesses may not be called to prove it — see Cross on Evidence
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Thavanayaki v. Mahal ingam
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(506 Ed) 236. Two reasons for this rule have been adduced. Oneis the ease with which evidence of this nature could be manufactu-red; the other is that this type of evidence would be superfluous,for the assertions of a witness are to be regarded in general as true,until there is some particular reason for impeaching them as false.
When the British introduced the Indian Evidence Act, No. 1of T872 and the Ceylon Evidence Ordinance, No. 14 of 1895, theydeparted from this rule and incorporated section 157, in terms ofwhich "in order to corroborate the testimony of a witness, anyformer statement made by such' witness, whether written orverbal, relating to the same fact at or about the time when the facttook place or before any authority legally competent to investi-gate the fact, may be proved". One notes the care and precautionswhich the framers have adopted in order to overcome the possi-bility of fabrication. The previous statement had to be eitherone made "at or about" the time when the fact sought to becorroborated took place or had to be made before a "competentauthority."
In an early case, that of Angohamy v. Kirinelis Appu (1911) 15NLR 232^), Wood Renton, J. expressed the opinion that whensection 7 (present section 6) speaks of the corroboration of theevidence of the mother it must be taken to include any kind ofcorroboration. In other words section 157 of the Evidence Ordi-nance applied to section 7 of the Maintenance Ordinance. Havingcertain doubts about this view Shaw, J. referred "the very impor-tant point" as to whether previous statements made by the motherof an illegitimate child to third persons as to the paternity of thechild are sufficient corroboration for the purpose of satisfying therequirements of section 7 of the Maintenance Ordinance, to a fullCourt. A Full Bench comprising Bertram, C. J., Ennis and de Sam-payo.J.J. in the case of Ponnammah v. Seenithamby (1921) 22NLR 395^), whilst not agreeing with the Magistrate that thestatement made by the girl to the mother and afterwards to thelocal Headman, can be considered as being made at or about thetime of the intimacy, Bertram, C. J. expressed the view that "if astatement is made at or about the time when sexual intimacy iscontinuing'between the parties, then it seems to me that undersection 157 of the Evidence Ordinance, a statement by the womanto another person alleging that intimacy is corroboration withinthe meaning of the section." Commenting on the view taken byWood Renton, J. that section 157 of the Evidence Ordinanceapplied to section 7, Bertram, C. J. stated "and that, I take it,must be accepted as the law" at p. 398.
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One would have thought that the Full Bench decision settledthe law as to the admissibility of previous statements as corrobora-tion of the mother's evidence. But twenty years later Nihill, J. inMahesan v. Chellammah (1939) XIX C.L. Rec. 31^3) characterisedas "difficult" the question of the admissibility of the girl's state-ment to her mother. With respect, any' difficulty had been resol-ved by the Full Bench in 1921 and the difficulty seen by Nihill, J.did not arise. It seems to me that the law is well settled after theFull Bench decision, and that is, that the requirement of section6 of the Maintenance Ordinance that in order to justify the awardof maintenance, the evidence of the mother should be corrobora-ted in some material particulars by "other evidence" is satisfied byany kind of corroboration admissible in law, including previousstatements made by the mother to third persons and admissibleunder section 157 of the Evidence Ordinance, subject of course tothe limitations stipulated in that section.
The corroborative value of such previous statements can ofcourse be of varying character, dependent upon the circumstances .of each case, for a person may equally persistently adhere to false-hood once uttered, if there be a motive for it. Previous statementswould only constitute one type of corroborative evidence. Therecan be several others, too numerous to enumerate. What is requi-red in a Maintenance case is that the totality of such items ofcorroborative evidence must be such as to satisfy the Magistratethat the evidence of the mother that the child begotten has beenthe result of her intimacy with the respondent is the truth, andnothing but the truth. As Basnayake, J. (as he then was) pointedout in Wijeratne v. Kusumawathie (1948) 49 NLR 354'4):_ "Inconsidering in appeal the question of corroboration under section6 of the Maintenance Ordinance, I think the court, should give dueweight to the words 'to the satisfaction of the Magistrate.' Thesewords in my view require that, if there is evidence which if belie-ved supports the Magistrate's conclusion that the mother of theGuild .is corroborated in some material particular, this Court shouldnot on a reading of the depositions interfere on the mere questionof the degree of corroboration" at p. 355.
One notes the care with which the Magistrate has given thebenefit of all reasonable doubts to the respondent. He has; forexample, not taken into account the evidence of the applicantgiven before the coroner on 11.11.75 on the ground that it wasnot a statement made "at or about" the time of the intimacy,whereas it was, because the Magistrate had accepted her evidencethat she was living in the respondent's house up to that day.
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The third item of corroborative evidence is the conduct of therespondent. When she informed him of her pregnancy he promi-sed "somehow or other to accept her in January." That evidenceas well as the evidence that the respondent's mother took theapplicant to a native physician has been believed by the Magis-trate. One could not expect the applicant to have called therespondent's mother, for that may have been disastrous to herown case. On the other hand the respondent ought to have con-tradicted that evidence by calling his mother as a witness.
To sum up, it would appear that although the applicant failedto establish a marriage according to Hindu custom, she did con-vince the Magistrate that she lived with the respondent for aperiod of six years, and that the child Imayalini was born as aresult of their intimacy. The Court of Appeal therefore erred whenit rejected, the Magistrate's finding of fact, for in reaching that con-clusion the Magistrate had not gone on any assumption of marri-age, but had considered the evidence of their relationship indepen-dently. The Court also erred when it said that the Magistrate hadmisdirected himself on the matter of corroboration. The Magis-trate was satisfied that the evidence of opportunity, the evidenceof previous statements and the evidence of the conduct of the res-pondent constituted satisfactory corroboration of the applicant'sevidence. The Court of Appeal was not justified in disturbingthose findings of fact.
For these reasons I would allow this appeal, and restore theorder made by the Magistrate awarding the applicant a sum ofRs. 50/- per month as maintenance in respect of the child Imaya-lini. The applicant will also be entitled to the costs of this appealwhich I would fix at Rs. 500/-.
SHARVANANDA, J. – I agree.
RATWATTE, J — I agree.
Appeal allowed.