Present: Bertram C.J.

PODIHAMY v. WICKREMASINGHE.

579-P. O. Matara, 31,546.

    Maintenance-Application by mother-Illegitimate children-Decisory oath.

A case in which a mother applied for maintenance on behalf of her illegitimate children may be put to the test of a decisory oath, provided the Magistrate is satisfied that it is in the interests of the children that it should be done.

Sayalee v. Setuwa1[1 (1923) 25 N. L, R. 216.] explained.

APPEAL from an order of the Police Magistrate of Matara, dismissing an application for maintenance.

Soertsz, for applicant, appellant.

H. V. Perera (with him Jayasuriya), for respondent.

November 18, 1924. BERTRAM C.J.-

This is an appeal in a maintenance case which raises some points of difficulty. The allegation of the applicant, Podyhamy, was to the effect that the respondent, Don Carolis Wickremesinghe, had maintained her as his mistress for a period of seven years, and that she had two children by him, one six years old and the other six months old. She further alleges that the respondent continued to maintain her up to about three months before action. He now, so she says, repudiates his responsibilities, having been lately married. The applicant lives with her mother, and according to her story, the

respondent regularly visited her, and kept his clothes at her mother's house. The respondent would appear to be a person of some C.J. importance. He is the brother of the local headman, and also a brother of the late headman. He is a cousin of a headman of a neighbouring village. The applicant filed a list of five witnesses. respondent, on the other hand, filed a counter list of witnesses, including a Vidane Arachchi and two headmen. -The Vidane Arachchi was to prove the loose character of the applicant. The respondent alleged that the case was instigated by his brother-in-law, yet another headman, the peace officer of a neighbouring village.

When the case came up for hearing none of the witnesses cited by the applicant appear to have been available. She had nobody to support her except her mother and an uncle, who was not on her list of witnesses. Discouraged, no doubt, by this circumstance, she challenged the respondent to take a decisory oath at the temple at Tissamaharama. On this point the case underwent a series of vicissitudes. First, the Magistrate ruled against the applicant on the ground that section 9 of Ordinance No. 9 of 1895 only applied to judicial proceedings of a civil nature, and that he was not satisfied that a maintenance case was a proceeding of a civil nature. The applicant was thereupon called, and after a few introductory circumstances, she broke down and refused to proceed with the case. The Magistrate, quite rightly, refused to allow her to withdraw from the case as the interests of the children were involved. After some further examination, applicant's advocate discovered an authority which decides that maintenance proceedings are proceedings of a civil nature, see Eliza v. Jokino.1[1(1917)20N.L.R.157.] The applicant thereupon repeated her challenge to the respondent to take an oath at Tissamaharama Dagoba, and the respondent declared that he was willing to do so. The Magistrate was in the course of making his order for this purpose, when another counsel, as amicus curias, drew his attention to the recent decision of my brother Jayewardene (Sayalee v. Setuwa (supra)), and this case was taken as deciding that in no case where the interests of minor children were involved is the mother in a maintenance case entitled to put the case to the test of a decisory oath. This, however, is not the proper interpretation of the decision.. Acting on this misinterpretation, the learned Magistrate ordered the case to proceed.

When applicant first appeared before the Court, it was alleged (no doubt with a view to impugning her character) that a certain sore, which she was suffering from wa