057-NLR-NLR-V-52-KARUPPIAH-KANGANY-Appellant-and-RAMASAMY-KANGANY-Respondent.pdf
J9S0Present: <Swan J.KARUPPIAH KANGANY, Appellant, and RAMASAMYKANGANY, Respondent
S. C. 701—M. C. Baclulla, 8,754
Maintenance Ordinance (Cap. 76)—Section 6—Application for maintenance ofillegitimate child—Evidence of mother of child—Not an essential requirement.
Defendant was sued for maintenance for an illegitimate child born to one K.a deaf and dumb woman. The application was made by K’s father, and K.herself did not give evidence.
Held, that section 6 of the Maintenance Ordinance cannot be interpretedto mean that the evidence of the mother is an essential requirement, thatwithout it a Magistrate would have no jurisdiction to make an order for themaintenance of an illegitimate child.
A PPEAU from a judgment of the Magistrate’s Court, Badulla. .H. W. Tambiah with V. Ratnasabapathy, for the defendant-appellant.
No appearance for the applicant-respondent.
Cur. adv. vult.
September 15, 1950. Swan J.—
In this case the defendant-appellant was sued for maintenance for anillegitimate child born to one Kadiraie, a deaf and dumb woman. Theapplication was made by Kadiraie’s father who is the respondent to thisappeal. Kadiraie herself did not give evidence. Although she is adeaf and dumb person her evidence could have been given by signs.Section 119 of the Evidence Ordinance makes provision for the receptionof such evidence.
Mr. Thambiah, who argued the appeal, strenuously maintained thatwithout the evidence of the mother the application could not succeed.He contended that under section 6 of the Maintenance Ordinance theevidence of the mother was necessary to entitle a Magistrate to make anorder for the maintenance oi an illegitimate child. That section primarilydeals with the period within which an application for the maintenanceof an illegitimate child should be made. It concludes thus :
"And no order shall be made on any such application as aforesaid
on the evidence of the mother of such child unless corroborated in some
material particular to the satisfaction of the Magistrate.”
In support of his contention Mr. Thambiah cited the ease of TheQueen v. Armitage and another, Justices of the TVest Riding of Yorkshire-It iras there held that a bastardy order could not be made without themother of the child being examined as a witness. In that ease themother died after the issue of summons and before the hearing, andthe Court upon the construction* of the particular enactment whichgoverned the matter held that, in the circumstances, the justices hadno jurisdiction to make an order. #
The relevant sections of the enactment are set opt as a footnote to theease. It would appear from a perusal thereof that the mother’s evidencewas a requirement that could not be dispensed with. Hannen J. whodelivered the judgment of the Court said:"But we are further of
opinion that it was the intention of the legislature, having regard to thepeculiar nature of such inquiries, that the mother should support heraccusation by her oath and submit herself to crqss-examination. Thepaternity of the child is a fact as to which no evidence can be satisfactorywithout the statement of the mother; and the peculiar language of thestatute requiring that the evidence of the mother shall be corroboratedby other testimony cannot, as it seems to us, be given effect to withoutholding that the mother herself must be a witness on her own behalf."
In my opinion the language of section 6 of our own Ordinance cannotbe interpreted to mean that the evidence of the mother is an essentialrequirement, 'that without it a Magistrate would have no jurisdiction tomake an order for the maintenance of an illegitimate child. All it saysis that upon the uncorroborated testimony of the mother a Magistratecannot make an order against the putative father.
It should be noted that our Ordinance provides for the maintenanceof wives and both legitimate and illegitimate children. The procedureis the same in each case. With regard to illegitimate children there is atime limit within which the application should be made and a furtherrequirement regarding corroboration of the mother’s testimony. I canonly interpret the latter provision to mean that where the mother givesevidence a Magistrate cannot make an order on that evidence alonewithout corroboration, however much he is impressed with the mother’sevidence and accepts it as true. It is inconceivable that the legislatureintended to deprive an illegitimate child of maintenance where themother is dead and the person applying for maintenance can satisfy theCourt that the defendant is the father of the child by cogent evidencesuch as, for example, the defendant’s own admission of paternity.
I shall now deal with the appeal on the merits. On the evidenceled I cannot understand how the learned Magistrate could have heldthat the defendant was the father of the child. As I have alreadv saidthe mother herself did not testify. The respondent’s evidence is thatthe appellant lived in the adjoining room in*the same lines; that when
lie found liis daughter pregnant he ashed the conductor, Richard, tofind out who was responsible, and that at an identification parade shepointed out the appellant as the culprit.- In cross-examination hestated that twice" or thrice he heard somebody getting into the roomand on one occasion, about a month before he discovered his daughter’s•condition, he saw the appellant running away when he opened the door.This last bit of evidence if accepted would have been corroborativeevidence had the applicant herself testified that the appellant hadintercourse with her. By itself, however, it is inconclusive and of novalue at all. He said he told the conductor about this incident thefollowing day but the conductor denies it.
O
The only other witness was the conductor, Richard. He stated thathe held an identification parade • and that Kadiraie pointed out the.appellant as the person who was responsible for her pregnancy. Counselfor the appellant objected to this evidence as it amounted to hearsayand the Court upheld the objection. But even if the evidence wasadmissible I do not think it carried the case any further because Richardsays that he questioned the appellant and the appellant denied that hewas the culprit.
It is curious that the learned Magistrate, who upheld the objectionthat the evidence that Kadiraie pointed out the appellant was notadmissible, has more oif less based his judgment on that fact.
In my opinion the evidence is entirely insufficient to justify the con-.clusion that the appellant was the father of the child. The orderappealed from is set aside. In the circumstances I make no order as tothe costs of the appeal..
Order set aside.