108-NLR-NLR-V-49-WIJERATNE-Appellant-and-KUSUMAWATHIE-Respondent.pdf
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BASNAYAKK J-—Wijeratne v. ICuewnawathie.
1948Present: Basnayake J.
WIJERATNE, Appellant, and KUSUMAWATHIE, Respondent.
S. C. 65—M. C. Kandy, 29,552.
Maintenance—Corroboration of applicant—Nature of evidence required—Satisfactionof Magistrate—Section 6, Chapter 75.
.The corroboration required by section 6 of the Maintenance Ordinanceis corroboration to the satisfaction of the Magistrate. Where, therefore,there is evidence which, if believed, supports the Magistrate’s conclusionthat the mother of the child is corroborated in some material particular theSupreme Court should not on a reading of the depositions interfere on themere question of the degree of corroboration.
-A.PPEAL from a judgment of the Magistrate, Kandy.
A. Hayley, K.C., with Peri Sunderam, for the defendant, appellant.No appearanoe for the applicant, respondent.
Cur. adv. vuU.
April 5, 1948. Basnayake J.'—
The defendant appellant appeals from an order under section 2 of theMaintenance Ordinanoe to pay a sum of Rs. 3 per mensem to the applicantfor the maintenance of his illegitimate ohild. The question arising fordeoision on this appeal is whether the evidence of the applicant who is themother of the ohild is corroborated in some material particular by otherevidence to the satisfaction of the Magistrate.
The applicant and the defendant are first cousins and the latterused to visit the house of the former. An unole of the defendant,one Lewis, says that he detected the applicant and the defendantsleeping together one night in a dark room in the applicant’s house
BASTsAYAKE J.—Wijeratne v. Kusumawathie.
355
when all the other inmates were away and that he marked his dis-approbation by slapping them both. This detection was made duringthe period the applicant says the defendant was on terms of sexualintimacy. About one and a half months after this the applicant wastaken to the doctor and was found to be pregnant. The applicant’sbrother Babanis says that he knew that the defendant and the appli-cant were on terms of sexual intimacy and that he forbade thedefendant to come to their house. Babanis says that the defendantvented his displeasure over this by stabbing him sometime later inthe course of a quarrel with his father. The learned Magistrate issatisfied that the evidence sufficiently corroborates the evidence of themother as to paternity of the child.
It has been held by this Court in the case of Angohamy v. Bdba-sinno 1 that the corroboration which the section contemplates shouldconsist of some evidence, oral or real, entirely independent of that ofthe applicant which renders it probable that her story as to thepaternity of the child in respect of whom she is applying formaintenance is true. The corroboration need not relate to the actualact of connexion which produced the conception. It is sufficient if itrelates to the sexual intimacy between the applicant and thedefendant—Ponnammah v. Seenitamby *.
In this case there is evidence which, if believed, corroborates theapplicant's evidence as to the paternity of the child and I am notdisposed to interfere with the conclusion of the learned Magistrate onthis matter even if I were inclined to take a different view of theevidence. In considering in appeal the question of corroborationunder section 6 of the Maintenance Ordinance, I think this Courtshould give due weight to the words “ to the satisfaction of theMagistrate ” therein. These words in my view require that, if thereis evidence which if believed supports the Magistrate’s conclusion thatthe mother of the child is corroborated in some material particular,this Court should not on a reading of the depositions interfere on themere question of the degree of corroboration. , Shaw J. in the caseof Si naval v. Nagappa 3 makes certain observations as to how thisCourt should approach the consideration of a case under the Main-tenance Ordinance. As I have referred to that case it may beexpedient to note the following passage from the judgment. “ TheMagistrate has come to the conclusion on the evidence that theparties did not go through a ceremony of marriage and had, in fact,never lived together at all either as husband and wife or as man andmistress. I confess that I have felt some difficulty on the finding offact. The evidence as recorded would appear to me to more stronglysupport the case of the applicant than that for the defendant, and wereI deciding this case unbiassed by the finding of the Magistrate andupon the recorded depositions, I should probably find in favour of theapplicant. But that is not sufficient to enable me to reverse theMagistrate’s finding. Maintenance cases are in the nature of civilproceedings, and the Court of Appeal, although sitting by way of
1 (1910) 4 Weerokoon 60.3 (1921) 22 N. L. R. 395.
3 (1916) 6 Balasingham's Notes of Cases 26.
see
GRATIAKN J.—Davilh Appu v. The Attorney-General.
rehearing, ought to give very great weight to the finding of fact ofthe Magistrate who has seen the witnesses, and ought not to reversehis decision on a question of fact, unless it is clear from the evidenceor from some undisputed fact that he has gone wrong.”
Although these words were expressed not with reference to anyspecial provision of the Maintenance Ordinance they apply even withgreater force to that portion of section 6 which requires corroborationof the evidence of the mother of an illegitimate child.
The appeal is dismissed.
Appeal dismissed.