082-NLR-NLR-V-77-W.-I.-PIYASENA-Appellant-and-K.-M.-KAMALAWATHIE-Respondent.pdf
406
Piyasena v. Kamalauathic
Present: Pathirana, J.
W. I. PIYASENA, Appellant, and K. M. KAMALAWATHIE,
Respondent
S.C. 413/72—M. C. Ratnapura, 64049
Maintenance—Illegitimate child—Proof of paternity—Production of birth
certificate not necessary always.
In an application for maintenance for an illegitimate childwhose birth has been registered, the birth certificate of the childneed not be produced if the only issue in the case is whether thechild born to the applicant was a child ef the defendant, asalleged by the applicant, or whether the child was that of a manother than the defendant, as alleged by the defendant.
Allis v. Nandawathie (75 N. L. R. 191) distinguished.
Appeal from an order of the Magistrate’s Court, Ratnapura.P. O. Wimalanaga, for the defendant-appellant.Applicant-respondent absent and unrepresented.
PATHIKANA, J.—Piyasena v. Kamalaivathie
407
August 2, 1973. Pathirana, J.—
Learned Counsel for the defendant-appellant submits thatalthough the applicant says that the child was born on 12.1.1971the birth certificate of the child had not been produced inevidence as such the applicant cannot succeed in her applicationfor maintenance for her child. In support of this argument hecites the case of Allis v. Nandawathie1 75 N. L. R. 191 whereWijayatilake, J., in an application for maintenance for anillegitimate child, whose birth has been registered and thepaternity of the child was disputed, held that the birth certificateof the child should be produced to assist Court in determining thequestion of paternity. The relevant portion of the judgment readsas follows : —
“ Before an order is made in this case it would besatisfactory if the certificate of birth of this child is producedif the birth has been registered. The entries in this certificatewould be relevant. In my opinion, where a birth has beenregistered the certificate of birth should be produced to assistCourt in determining this question of paternity althoughthe entries in such certificate may not be conclusive. Thedeclaration of parentage made by a parent has agenealogical value under Section 32 (5) of the EvidenceOrdinance (see Silva v. Silva 43 N. L. R. 572' and S.C. 239/71
M.C. Dambulla 20925 of 15.11.71). ”
He therefore set aside the order of the learned Magistrate andsent the case back for a fresh trial.
Counsel for the defendant-appellant concedes, however, that inthe case before me, no questions have been put to the applicantduring her cross-examination that either the child was not bornon this date or that no child was born to her at all. Thedefendant-appellant and his witnesses, who had given evidencehad also not challenged this position that the child was born tothe applicant on 12.1.1971. The only issue, therefore, in this casewas whether the child born to the applicant was a childof the defendant-appellant as alleged by the applicant, orwhether the child was that of one Dionis as alleged by thedefendant-appellant. With respect, I regret to say that I am notprepared to go to the length of applying the requirement laiddown by Wijayatilake, J., as one of universal application, andthat therefore in all cases where paternity is disputed theapplicant must produce the birth certificate of the child. I would,however, concede that there may be an appropriate case, wherethe production of the birth certificate is essential. I am of theview that on the facts of this case, it would not be necessary forthe applicant to have produced the birth certificate of the child1 (1971) 76 N. L. R. 191.
408
PATHIRANA, J.—Piyasena v. Kamalawathie
As I remarked earlier, no questions were put to the applicantor her witness challenging the evidence that the child of theapplicant was bom on 12.1.1971. If the mother of a cnild hadgiven evidence stating that the child had been born on aparticular date, and if no suggestions had been put to her thatthis is either false or inaccurate and the defendant had nor ledevidence challenging this position after such suggestion had beenmade to the mother, in such a situation, the Magistrate havingto decide the issue of paternity on the balance of probabilities,the non-production of the birth certificate is no reason why theCourt should hold that paternity of the child has not thereforebeen satisfactory established.
Under the Maintenance Ordinance the issue of paternity is tobe determined by a balance of probabilities and not by proofbeyond reasonable doubt—Caroline Nona v. De Silva1 49 N. L. R.163.
In the circumstances of this case, therefore, I hold that thenon-production of the birth certificate does not in any way affectthe applicant’s case.
I do not see any reason to interfere with the findings of thelearned Magistrate on the other matters urged by the learnedCounsel for the defendanl-appellant.
therefore, dismiss the appeal.
Appeal dismissed.
1 1918 49 N. L. B. 163.