Somainathie v. John Fernando
1953Present: Swan J.W. SOMAWATHIE, Appellant, and E. JOHN FERNANDO,Respondent
S. C. 315—M. C. Rakwana, 28,063
Maintenance—-Illegitimate child—Quantum of evidence.
Where a Magistrate dismissed an application for the maintenance of anillegitimate child without considering whether the defendant was the father ofthe child and solely on the ground that there was no evidence to prove that thechild had been maintained by the defendant within one year of its birth—
Held, that the paternity of the child was a relevant factor in deciding thequestion whether or not the child had been maintained by the defendant-
Appeal from a judgment of the Magistrate’s Court, Rakwana.
M. M. Kumarakulasingham, for the applicant appellant.
A. L. Jayaswriya, with B. E. de Silva, for the defendant respondent.
(1920) 22 N. L. R. 190.
SWAN J.—Somawathie •». John Fernando
March. 13, 1953. Swan J.—
I do not think that the learned Magistrate has approached this case fromthe correct angle. There were two questions he had to consider, namely,whether the defendant was the father of the child for whom the applicantasks for maintenance, and secondly, whether the defer dant hadmaintained the child within one year of its birth. Instead of answeringthe first question, the learned Magistrate decided the case on the second,namely, that there was no evidence to prove that the child had beenmaintained within one year of its birth. The learned Magistrate seemsto have entirely ignored the circumstance that paternity of the child wasa relevant factor in deciding the question whether the child had 'beenmaintained or not because, if the defendant was in fact the father of thechild, it would have been more probable than not that he would havemaintained the child.
I set aside the order made by the learned Magistrate dismissing theapplication. The case will go back for retrial before another Magistrate.In the circumstance, I make no order as to the cost of this appeal.
Sent back for retrial.