108-NLR-NLR-V-59-K.-DHARMADASA-Appellant-and-P.G.-GUNAWATHY-Respondent.pdf
Dharmadasa u. Gunaicathy
501-
1957
Present ; T. S. Fernando, J.
K. DHARMADASA, Appellant, and P. G. GUNAWATHY,Respondent' J
S. C. 725—M. C. Panwila, (Addl.) 10,027.
maintenance—Illegitimate child—Conduct of defendant in making false statements or. creating false evidence—71 'eight as corroborative evidence.
In an application for maintenance in respect of an illegitimate child, t ho• answer to tho qnstion whether the defendant’s conduct in making false state-ments or creating falso evidence can or cannot amount to corroboration of theapplicant’s story depends on all the circumstances of tho case. Such conduct'^- may amount to corroboration only where it appears .that there is reason to.'infer therefrom that the applicant’s story is presumably true. '.':
IVarawita v. Jane l'ona (19o-l) 5S jST. L. R. Ill, distinguished., v-ft
■-PPEAL from a judgment ot tho Additional Magistrate’s Court,Pamvila.,-■j –
– . •'* '->■ '
■ 3f. M. Kumarakulasinghani, for the defendant-appellant. •
– *■*.* »^‘ f -■ i
.-*■•> ..—y'• •. *,• – v’v*
Waller Jayewardene, /with F. X. J. Rasa n ayaga tn)vfor .'the applicantrespondent.' j •.. ;
= >£'-
■ "' :Curfadi&vuUP , j
-..: c ■'
1 {1051) 40 C. / ■12;
-50’
T. S. FERIs.AKDO, J.—Dharmadasa v. Gunawathlj '
December 13, 1957. T. S. Ferxaxdo, J.—
The question that arises upon this appeal is whether it could be saidin this case that the evidence of the apyilicant that the defendant is thefather of the child Dharmasiri born to her on October 2S, 1950, was' corroborated in some material particular by other evidence.
The applicant who is a relative of the wife of the defendant wasemployed by tho defendant and his wife as a domestic servant for aperiod of about five years ending in March to April 1950. The learnedMagistrate has found on the applicant's evidence that the defendant’swife entered hospital about December 1955 and stayed there for 15 daysduring which period the defendant had sexual relations with the applicantresulting in' the latter’s pregnancy- and the birth of Dharmasiri. Theapplicant stated that she returned to her parent’s home f<“>r the SinhaleseNew Year in April 1950, and did not go back to the house of the defendant.Sho realised she was then pregnant, but did not tell anyone about it.When her condition became apparent to her mother, her motherquestioned her but the applicant did not confide in her mother that thedefendant was responsible for her condition. Sho testified that thereason for refusing to disclose the identity of the person who had hadsexual relations with her was a request made to her by the defendantthat ohe should hold her tonguo about the intimacy. Any statementimputing the paternity of the child to the defendant was first madeby the applicant. on or about November 15, 195G, i.e., about eighteendays after the birth of the child. On that day the applicant made acomplaint to the Wattegama Police and her mother testified that thiscomplaint was made no sooner sho learnt from her daughter that thedefendant was the father of the newly born child.
The learned Magistrate states in his judgment that the applicant’sevidence is corroborated by her mother. If this statement is intended •to mean that the corroboration required by* the statute is to be foundin the evidence of the mother, I regret I am unable to agree. Indeed,learned counsel who appeared for the applicant before me concededat the commencement of the argument that the mother’s evidencein tills case cannot possibly be relied on as providing the necessarycorroboration. He argued, however, that there are other circumstanceswhich, though not held byr tho Magistrate as amounting to corroboration,tend to'prove that the evidence of tho applicant that the defendantis tho father of the child is truo. He pointed to two circumstances asproviding corroboration of the applicant’s evidence. The first wasan attempt by the defendant to prove falsely that opportunity' forintimacy did not exist, and the second was an attempt to bolster eip his,caso of denial by creating or leading false evidence that (i) a man calledPiyadasa was living in the applicant’s houso and that this man mightpossibly Bp-the father of tho. child, and (ii) he had inade"a complaintto tho Village ^Headman'on January'-S, 1956, that the applicant wasmissing from his hoiiSo'.
:■ £>-
As to the iirgtrof theso circumstances, tho learned Magistrate hasheld that ho does not believe tho defendant’s evidence that when Ids
T. S. FERXAXDO, J.— Dhartnadasa (•. Gunawalhff
503
wife was away in hospital his mother-in-law and sister-in-law stayedat lu's house. As to the second, the Magistrate lias disbclioved theevidenco (i) of the defendant’s witness Loku Banda who stated thatlie was aware that a man called Premadasa was keeping the applicantas Iris mistress, and (ii) of tho Village Headman that the defendantdid on January S, 1956, make the complaint referred to above. ,.
Counsel has referred me to the recent judgment of Sansoni J. inWaraicila v. Jana Nona1 in support of his argument that the falseevidence of the defendant in regard to Jack of opportunity for sexualintimacy and tho other false evidence referred to above provide thocorroboration required by the Ordinance. The facts of tho case beforeme arc clearly distinguishable from those of Waraioita v. Jane Nona1where the false statements of the defendant were of such a nature as to becapable of leading to an inference in support of tho applicant’s evidencoas to paternity. I should like to refer to the case of Jones v. Thomaswhere a Divisional Court of the King's Bench ruled that a false statementmade by the alleged father before the hearing of the complaint in affiliationproceedings was not necessarily corroboration of the woman’s evidencein any material particular as required by Section 4 of the Bastardy LawsAmendment Act, 1S72. Tho justices had there stated a case for theopinion of the King’s Bench, and ono of tho matters relied on by thejustices as corroboration was stated by them as follows :—
But what impressed us more than anything was tho untruthfulsuggestions made on tJie appellant’s instructions to the respondent,and what we regarded as the untruthful evidence given on his ownbehalf in support of those suggestions. In our judgment thoappellant and certain witnesses had agreed to give false evidenceconcerning tho respondent in order to defeat the respondent’sapplication, and wo could not but view his denial of the respondent’sevidence in the light of this fact, and regard his whole conduct in thematter as strong corroboration of the respondent’s evidence ”.
As to this, Avory J. stated (at page 329), that means that the apjuellant’sconduct in putting forward a defence which they did not believe affordedcorroboration. It might just as well be said that the appellant’s denialon oath that lie was responsible for her condition afforded corroborationof the respondent’s evidence Dealing with the same matter, ^jawrenco
J.in the same case stated (see page 332), " in the present case the justiceshave relied most strongly upon the case put forward by the appellant and -his witnesses in tho bastardy proceedings which they disbelieve^ gs,corroborating the mother’s evidence. It appears to mo that if this is,corroboration any case put forward by an alleged father which is dis–..believed may be regarded, as corroboration of tho mother’s evidence■Whether a defendant’s conduct’ in making Jalso statements or 'creating../■'false evidence can or cannot amount to .corroboration must depend :.on all the circumstances of the case. If I may say-so yribh. great respect,the matter was put succinctly and correctly by Lord He wart C.J. in tho.same case (at p. 327) when ho stated that “ tho conduct 6f tho alleged
3 {193-4) oS X. L. H. 111.'J L. R. {1934) J K. 13. D. 323.
504' T. S. KjERiTAJCDO, J.—Dharmadasa v. GunawaZhy / "
father may amount to corroborative evidence where it appears that thereis reason to infer from such conduct that the mother’s story is presumablytrue^as in Mash v. Harley and Thomas v. Jones and in.the Scottish case ofDawson v. McKenzie ”.■
, Notwithstanding' tho findings of tho learned Magistrate that thedefendant has given false evidence and has been responsible for leadingor introducing false evidence as related abovo, I do not find it possible toreach a conclusion that this conduct on tho part of tho defendant iscapablo of leading to an inference in support of the applicant’s evidencethat the defendant is tho father of tho child Dharmasiri. The circum-stances relied on by counsel do not provide tho statutory corroborationrequired in this class of caso, and in that view of tho matter the applicantfails and her application should have been dismissed.
Tho learned Magistrate has stated that tho applicant is a simple andimeducated girl and he has obviously been impressed by her evidence.The requirement of corroboration of the applicant’s evidence as topaternity is, however, real and not merely formal. I have thereforeto allow this appeal, although X must say I do so with some reluctance.
X set aside the order for maintenance and direct that the applicationbe dismissed. Thero will bo no costs of this appeal.
Appeal alloived.