ABRAHAMS C.J.—Wijeysinghe v. Josi Nona.
1936Present: Abrahams C.J.
WIJEYSINGHE v. JOSI NONA528—P. C. Matara, 70,701.
Maintenance—Application for cancellation of order—Proof that the wife isliving in adultery at the time—Ordinance No. 19 of 1889, s. 6.
Cancellation of an order for maintenance can be made under section 6of the Maintenance Ordinance only on proof that at the time of theapplication for cancellation the wife is living in adultery with someperson or is living a life of prostitution.
Isabelahamy v. Perera (3 C. W. R. 294) followed.
^y^PPEAL from an order of the Police Magistrate of Matara.
L. A. Rajapakse, for defendant, appellant.
J. R. Jayawardana, for applicant, respondent.
Cur. adv. vult.
October 20, 1936. Abrahams C.J.—
The appellant who had been living separately from his wife was payingmoney under an order of Court for the maintenance of the wife and theirchild. He eventually moved the Police Magistrate to cancel the order ofmaintenance under section 6 of the Maintenance Ordinance, 1889, on theground that she was living in adultery.
At the hearing he called evidence to prove that since their separationshe had given birth to another child of which he contended he was notthe father. He stated that he had not had access to his wife since thedate of their separation, and that the child was bom on a date whichshowed that he could not have been the father-of it. He called witnessesin support of his allegation that he had not had access to his wife, and healso called a woman who gave direct evidence from which it could be11. L. R. 3 Mad. 48.» I. L. R. 29 Bom. 449.
ABRAHAMS C.J.—Wijeysinghe v. Josi Nona.
inferred that the wife had committed adultery. This woman, however,in cross-examination stated that she was entirely at a loss to understandhow the appellant knew that she was prepared to give evidence as she hadhad no communication with him. She repeated this in re-examination.The Magistrate recalled the appellant who said that he had receivedinformation from this woman of the evidence which she could give, andhe had served a summons upon her to bring her to Court, and he saidthat she was speaking falsely when she said that she had not given himthis information. The Magistrate then and there dismissed the appli-cation, stating that the evidence led was so utterly false that it wasunnecessary to say anything more ; that an attempt was made to provethat the wife was living in adultery and that her second child was not thechild of the appellant. Jle held that the appellant and his witnesseshad perjured themselves in, what he calls, an utterly disgusting manner.
In my opinion the Magistrate was too precipitate in disposing of thecase in such a summary fashion, merely because the female witness abovereferred to had said that she had had no communication with the appellant,and the appellant said that she had communication with him. It appearsobvious that. the Magistrate treated as absurd the woman’s statementthat she had not had communication with the appellant, and presumablyhe called the appellant to give him a chance of rebutting that statement.It was not material to the appellant’s case that this witness had made acommunication to him. She was evidently cross-examined in order todiscredit her, and why because she was discredited the appellant shouldbe presumed to have brought her into Court to tell a false story is morethan I can understand. The Magistrate no doubt was quite right if heconcluded that the whole of the woman’s evidence was unreliable, but hehad no right to assume that it was necessarily false because he could notrely upon it, much less to assume that it was false to the knowledgeof the appellant. Further, he seems to have considered that he wasdriven to conclude that the whole of the case for the appellant was falseand that all the witnesses perjured themselves. He gave no reasonsfor this thorough-going denunciation, and on the record it does notappear to me that he was justified in coming to that conclusion.
If the issue to be tried in this case had merely been whether the childwhose paternity the appellant repudiated is his child or not, or whetherthe wife had committed adultery, there would have been ground for anew trial, but the issue was whether in terms of section 6 of the Mainte-nance Ordinance the wife was living in adultery. The words of thesection are plain, “On proof that any wife in whose favour an orderhas been made …. is living in adultery …. theMagistrate shall cancel the order.” The meaning is equally plain : thewife at the time that the application for cancellation of the order was mademust be cohabiting with some other man or living a life of promiscuousimmorality. Manifestly all that the appellant in this case could haveproved, if the case had been heard out, was that the child was not his,and inferentially that his wife had about a year previous to his appli-cation committed adultery with some man. He could not have provedthereby more than a single act of adultery, and if he could have done,he could not have proved that the adultery was going on at the date of
Ibrahim v. Colombo Municipal Council.
his application. This is .not the first case of its kind. The cases ofIsabelhamy v. Perera1 and Rammalhamy v. Appuhamy5 have beencited on behalf of the respondent. This case does not seem to me reallyto need any authority, for the words are too plain to require interpretation.
I dismiss the appeal.
WIJEYSINGHE v. JOSI NONA