003-SLLR-SLLR-1999-V-3-UBEYRATNE-v.-KARUNAWATHIE-AND-OTHERS.pdf
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UBEYRATNE
v.
KARUNAWATHIE AND OTHERS
COURT OF APPEALWIGNESWARAN, J„
JAYAWICKRAMA, J.
A. NO. 238/92 (F).
C. GAMPAHA NO. 28632/LDECEMBER 19, 1997.
MARCH 30, 1998.
SEPTEMBER 23, 1998.
S. 112, Evidence Ordinance – Legitimacy and paternity should be decided betweenthe parties – Can a third party attack the validity of contract of marriage – Access- Who can raise or canvass same.
The 1 st plaintiff-respondent's husband was the owner of the subject-matter, whodied intestate leaving behind the 1st plaintiff, his legal wife and three children,all of whom became entitled to his property.
The defendant-appellant contended that after the death of the 1 st plaintiff-repondent'shusband, she became entitled only to a half-share as his widow and that thethree children were illegitimate, and were not entitled to the balance half-share.It was further contended that Gunaratne left the 1st plaintiff-respondent on 31.8.1965and the three children were born in 1967, 1970 and 1975 and that they couldnot have been born legitimately during the continuance of their marriage.
Held:
The question of legitimacy and paternity should be decided between theparties who are directly affected by such a question. The question of validityof marriage, paternity and legitimacy of the children are personal mattersto be decided by a Court of competent jurisdiction amidst the partiesaffected by the marital contract.
A third party should not have any legal right to attack the validity of sucha contract of marriage nor its consequences.
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There is no proof that the marriage between the 1st plaintiff-respondentand her husband was annulled according to law. Therefore, the childrenborn during the continuance of that valid marriage are presumed to belegitimate.
The question of no access in s. 112 Evidence Ordinance should be raisedand canvassed only by a disputing father not by a third party; only a partyto the marriage should be called upon to prove or disprove the questionof no access, as it is something personal to them.
The birth certificates of the children are prima facie evidence of the factthat they were born during the continuance of a valid marriage
"Presumption of law is not lightly to be repelled. It is not to be broken in
upon or shaken by a mere balance of probability, the evidence for the purpose
of repelling it must be strong, distinct, satisfactory and conclusive."
APPEAL from the judgment of the District Court of Gampaha.
Cases referred to:
Banbury Purage Case – 1811 – 1 SIM and St 153.
Kalikuttty Kanapathipillai v. Velupillai Parapathy – 57 NLR 553.
Wilkinson v. Est H. J. Steyn – 1947 (2) SALR 740 (CPC).
Gaskil v. Gaskii – 1921 – Pr. p. 425.
N. R. M. Daluwatte, PC for defendant-appellant.
Vidura Guneratne for plaintiff-respondent.
Cur. adv. vult.
November 26, 1998.
JAYAWICKRAMA, J.
This is an appeal from the judgment of the Additional District Judgeof Gampaha in favour of the plaintiff. The plaintiff-respondent, institutedthis action seeking a declaration of title to the land described in theschedule to the plaint.
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It was admitted that the 1st plaintiffs husband, A. M. Gunaratnewas the owner of the subject-matter of this case who died intestateleaving the 1st plaintiff, his legal wife, and three children all of whombecame entitled to his property. The 1st plaintiff averred that thedefendant-appellant had entered this property unlawfully on 27.1.92and he continued to be there as a trespasser.
The defendant-appellant averred in his answer that although theowner of the subject-matter was A. M. Gunaratne who was thehusband of the 1st plaintiff-respondent, after his death she becameentitled only to a half-share of the subject-matter as his widow andthat the 1 st plaintiff-respondent's three children being illegitimate, werenot entitled to the balance half-share of the subject-matter. He furtheraverred that the balance half-share of the property should devolveon deceased Gunaratne's brothers and sisters.
It is common ground that the 1st plaintiff-respondent was legallymarried to A. M. Gunaratne and that marriage subsisted until the deathof the said Gunaratne. Hence, the 2nd, 3rd and 4th plaintiff-respond-ents who were minors at the time of the institution of the action werein law legitimate children of the 1st plaintiff-respondent and herhusband. According to the birth certificates marked as V1, V5 andV6, the 2nd, 3rd and 4th plaintiff-respondents were the legitimatechildren of the 1st plaintiff-respondent and Gunaratne. Hence, innormal circumstances, the intestate property of A. M. Gunaratneshould devolve on his legal wife and his three children.
In view of the above facts the sole question for decision in thiscase is whether the 2nd, 3rd and 4th plaintiff-respondents were thelegitimate children of Gunaratne.
The learned President's Counsel for the defendant-appellant sub-mitted that as the 1st plaintiff-respondent had admitted that her husbandleft her on 31.8.1965, and the three children were born in 1967, 1970and 1975, they could not have been born legitimately during thecontinuance of their marriage. He further submitted that Gunaratne
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had filed a divorce case No. 18666/D (D3) against the 1st plaintiff-respondent and in the amended plaint in that case Gunaratne hadmade the allegation that she was living in adultery with unknownpersons from whom she had had children and denied their paternity.Further, Gunaratne had also made an application to the ConciliationBoard to obtain a divorce from his wife (D4).
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The learned President's Counsel for the defendant-appellant furthersubmitted that the 1st plaintiff-respondent had'filed a maintenancecase on 6.9.74 (D6) against Gunaratne for the maintenance of herselfand her children and that Gunaratne had denied paternity of the twochildren (D6A). The Court made no order in regard to the maintenanceas the applicant was absent on the last date of the case.
The learned President's Counsel contended that the said Gunaratnedied on 27.2.1982 and for 7 years the 1st plaintiff-respondent hadnot taken any steps to get a judicial order on the basis of the legitimacyof the children. In view of the fact that the alleged father, ie her marriedhusband had denied paternity, the counsel argued, that this was arelevant fact which had escaped the attention of the learned trialJudge.
The learned President's Counsel further contended that althoughGunaratne married the 1st plaintiff-respondent on 5.6.1965 (D2), themarriage was short-lived, as Gunaratne, the husband on 31.8.1965had made a complaint to the Grama Sevaka (D8) to the effect thathe had taken his wife and left her with her mother because his wife'scharacter was bad. After the wife was left at her mother's place, bothmother and daughter came to the husband's home and took backthe wife's belongings and her husband Gunaratne made anothercomplaint to the Grama Sevaka dated 2.9.1965 (D7) stating that hiswife had taken all her belongings from the matrimonial home. Thelearned President's Counsel submitted that there is no evidencewhatsoever that the wife ever came back to the matrimonial house,nor even that she attended the funeral of her husband.
The 1 st plaintiff-respondent denied all these allegations and statedin her evidence that her husband visited her in her own house and
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the children were born to him. She further denied that she everreceived summons in DC Gampaha case No. 18666/D.
The learned President's Counsel for the defendant-appellant furthersubmitted that the rejection of all these documents (D2, D3, D6, D7and D8) by the learned Additional District Judge is erroneous, as hehad not stated under what provisions of the Evidence Ordinance, theywere rejected. With regard to these complaints the learned AdditionalDistrict Judge held that the complaints had been marked without thecomplainant being called and that the plaintiff-respondent had noopportunity to question the complainant about the complaints. Thelearned President's Counsel submitted that as the complainant wasdead, he could not be questioned and that the best answer to thisis that Gunaratne had denied paternity before a Court of law and thewife did not proceed with the maintenance case, where Gunaratnecould have been questioned, when he was alive.
The learned President's Counsel for the defendant-appellant furthercontended that had the learned Additional District Judge approachedthis question on the basis of all the available material, his conclusionwould have been different.
According to the evidence of the 1st plaintiff-respondent (at page141) she has stated that she came back home to her mother aftershe got angry with the husband, but she became friendly again aftertwo or three weeks later and that her husband came to her housein the day time and went back to his own house in the evening.
The learned President's Counsel submitted that the 1st plaintiff-respondent's position regarding the maintenance case was that shenever instituted such a case, but since a certified copy of themaintenance case had been filed, there was no necessity for furtherproof. He submitted that if it was the Judge's view that somebodyelse had filed a maintenance case on behalf of two of these children,which is a far-fetched view, then he should have called upon thedefence to prove that the very same 1st plaintiff-respondent filed thisapplication.
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Learned President's Counsel further argued that once the 1stplaintiff-respondent denied that she had filed a case, the Court ofnecessity should have evaluated the denial on a balance of probabili-ties and come to a conclusion on her credibility as a witness whichthe trial Judge in this instance had not even attempted to do. There-fore, he contended that the rejection of the aforesaid documents waserroneous in law and vitiated the entire judgment of the learned trialJudge.
The learned President's Counsel contended that the 4th plaintiff-respondent Sujith Rohitha was born on 10.7.1975 (D6) and as themaintenance case was instituted on 6.9.1974, taking 280 days referredto in section 112 of the Evidence Ordinance as the period for gestation,this child would have been conceived a few days after 6.9.74.
The learned President's Counsel for the defendant-appellant furthercontended that it is improbable that the 1st plaintiff-respondent andGunaratne would have had sexual relationship whilst the maintenancecase was pending. He further argued that on 7.2.75 the applicantwould not have appeared in Court because her pregnancy would havebeen clearly visible.
The learned President's Counsel for the defendant-appellant furtherargued that had the learned trial Judge evaluated the material availablerationally, having regard to the probabilities, he would certainly havecome to the conclusion, that the 4th plaintiff-respondent was conceivedafter the maintenance case was instituted.
When one considers the above submissions made by the learnedPresident's Counsel on questions of fact and law to be decided bythe learned trial Judge, it must be remembered that questions ofpaternity and legitimacy are matters to be generally decided amongthe parties affected. In the instant case a third party is attemptingto deny paternity of the children and question the legitimacy of childrenborn during the continuance of a valid marriage.
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In my view the question of legitimacy and paternity should bedecided between the parties who are directly affected by such aquestion. A third party may only lead evidence of such facts elicitedin a contest between the parties in a Court of law regarding suchmatter. A third party who is not a party to a contract of marriagewhen he files an action in a Court of law to canvass the validity ofa marriage or the legitimacy or paternity of the children born duringthat valid marriage is trying to import his opinions on what had takenplace. The question of validity of marriage, paternity and legitimacyof the children are personal matters to be decided by a Court ofcompetent jurisdiction amidst the parties affected by the maritalcontract. A third party should not have any legal right to attack thevalidity of such a contract of marriage nor its consequences. Of course,a third party may make use of facts proving the relationship that existedbetween the contracting parties, provided they are relevant to thematters in issue.
In the instant case the evidence led by the defendant-appellantregarding the validity of the marriage and the legitimacy of the childrenseems to be hearsay. The documents marked do not prove thedissolution of a valid marriage nor the illegitimacy of the children bornduring the course of that marriage. A Court of competent jurisdictionhas not made any decision regarding divorce nor maintenance. Theonly inference one could draw from the documents marked is thatthere had been some marital problems between the 1st plaintiff-respondent and her husband, but even here the only surviving partyhad denied that there was a divorce case filed against her or thatshe herself filed a maintenance case against her husband. A legallymarried person could obtain a divorce only according to law. Thereis absolutely no proof that the marriage between the 1st plaintiff-respondent and her husband was annulled according to law. Althoughthe defendant-appellant had made certain allegations, they remain onlyas allegations without any proof. Thus, in law the marriage betweenthe plaintiff-respondent and her husband continued to be a validmarriage until her husband's death. Therefore, the children born duringthe continuance of that valid marriage are presumed to be legitimate
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children. In deciding such facts a Court will always consider what isbest in the interest and welfare of the children.
In such a situation the mere denial of paternity by the husbandwill not make the children illegitimate. In the instant case there isno proof of the dissolution of the marriage between the 1st plaintiff-respondent and her husband. Hence, the presumption under section112 of the Evidence Ordinance is applicable to. the children born tosuch marriage and therefore the 2nd, 3rd and 4th plaintiff-respondentsare to be deemed as the legitimate children of the 1st plaintiff-respondent and her husband. As the 2nd, 3rd and 4th plaintiff-respondents were born during the continuance of a valid marriagebetween the parents mentioned in their respective birth certificatesthat fact is to be deemed as conclusive proof that they are thelegitimate children of their putative father. This is a statutory recognitionof the principle underlying the maxim, 'Pater est quern nuptiaedemonstrant, which is recognized in both Roman-Dutch and EnglishLaw. Banbury Peerage case01, Voet, 1.6.6.
The question of no access in section 112 of the Evidence Ordinanceshould be raised and canvassed only by a disputing father not bya third party. Only a party to the marriage should be called upon toprove or disprove the question of no access, as it is somethingpersonal to them. Access is something factual and not dependant onopinions. If a party to a marriage alleges no access and gives evidenceto that effect the position would be different and he may be allowedto call other evidence as corroboration of his allegation. In the instantcase the 1st plaintiff-respondent's husband never gave evidence tothat effect nor was he cross-examined. An outsider cannot vouch forsuch a personal matter as "no access". The only acceptable evidencein the instant case regarding access is the 1st plaintiff's-respondent'sevidence where she has categorically stated that although she leftthe house of her husband, he used to visit her during the day andgo back to his home in the evening. This being the only evidenceregarding access, the principle laid down in Kalikutty Kanapathipillaiv. Velupillai Parpath/2) is applicable. The Privy Council in that case,
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held that where there was personal access under such circumstancesthat there might have been sexual intercourse, the law raised thepresumption that there had actually been intercourse, and that pre-sumption must stand, till it is rebutted satisfactorily by evidence thatthere was no such sexual intercourse. In the instant case the evidenceof the 1 st plaintiff-respondent clearly establishes the fact that althoughshe lived with her mother, her husband used to visit her and thattheir houses were situated in close proximity.
If one is to accept the submissions made by the learned President'sCounsel for the defendant-appellant regarding the question of legiti-macy and access, then any third party other than the husband orthe wife could lead evidence to prove facts which could dissolve amarriage and thereby make the children illegitimate. The presumptionof legitimacy could only be displaced by clear and unimpeachableevidence and in particular by evidence of incapacity to generate orof an absence inconsistent with the period of gestation. Either spousemay give evidence of non-access in any proceedings civil or criminal.(Grotius 1.12.3) Wilkinson v. Est. H. J. Steyri3K
In the instant case the defendant-appellant has made an attemptto deprive the three children born to the 1st plaintiff-respondent duringthe continuance of her valid marriage to Gunaratne, of their lawfulrights to succeed to the property of their putative father. The defendant-appellant's sole intention seems to be to acquire a share of theproperty which these children had become legally entitled to. Theacceptance of the arguments put forward by the learned President'sCounsel for the defendant-appellant would be against public policy.Scheming persons can otherwise deprive legitimate children of theirdue rights and cause injustice to such children.
Mere filing of certified copies of a plaint and answer in a divorcecase or an application in a maintenance case by itself, would notprove anything unless a valid judgment or decree of a Court ofcompetent jurisdiction is also produced. It is prudent to view what hastaken place according to law rather than impair the value of a marriageor affect the legitimacy of children. It would.be unjust to stamp a child
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with illegitimacy or it's mother with want of chastity without proof ofsuch facts.
The documents marked by the defendant-appellant to show thatthere had been marital problems between the 1st plaintiff-respondentand her husband are not legal proof of the fact of the dissolutionof their marriage or the illegitimacy of the children. A Court cannotaccept these documents as evidence as they are only allegations andnot proved facts. In the instant case the only surviving party to themarriage between the 1st plaintiff-respondent and her husband hasgiven evidence denying these allegations and there has been no otherevidence to prove otherwise and the Court had no alternative otherthan to accept her evidence. The birth certificates of the childtrenare prima facie evidence of the fact that they were born to the 1stplaintiff-respondent and her husband during the continuance of avalid marriage. No cogent evidence had been led in the instant caseby the defendant-appellant to disprove such facts. All what thedefendant-appellant had done was to give evidence based on gossipand hearsay. Lord Chancellor in Gaskill v. Gaskilf4) points out that"presumption of law is not lightly to be repelled. It is not to be brokenin upon or shaken by a mere balance of probability; the evidencefor the purpose of repelling it must be strong, distinct, satisfactoryand conclusive".
When one considers the above facts it is clear that the learnedadditional District Judge had very correctly evaluated the evidencebefore him in this case and arrived at a correct conclusion. Hence,
I affirm the judgment of the learned Additional District Judge anddismiss the appeal with incurred costs payable by the defendant-appellant to the plaintiff-respondents.
WIGNESWARAN, J. – I agree.
Appeal dismissed.