1929  Present: Fisher C.J. and Drieberg J.

GRANGE v. PERERA.

350-D. C. Kalutara, 14,154.

Seduction-Claim for damages-Defendant denies seduction-Corroboration of plaintiffs evidence-Material particular.

Where, in an action to recover damages for seduction, the defendant denies the seduction, the plaintiff's evidence must be corroborated in some material particular.

APPEAL from a judgment of the District Judge of Kalutara. The facts appear from the judgment.

H. V. Perera (with Ameresekera), for appellant.

N. E. Weerasooria (with. Molligodde), for respondent.

August 29, 1929. FISHER C.J.-

In this case the plaintiff (respondent) sued the defendant (appellant) for damages for seduction. The plaint is dated July 12, 1927, and alleges (paragraph 3) that " on or about January, 1927, the defendant at Palatota aforesaid on a promise of marriage seduced the plaintiff and carnally knew her on several occasions thereafter and the plaintiff is at present bearing a child to the defendant. " On July 24, 1927, the plaintiff gave birth to a child. On July 16, 1928, the action came on for trial and the plaintiff's Advocate then stated that " the seduction took place on December 25, 1926, and the statement in paragraph 3 of the plaint re the date is an error. " Considerable stress was laid by Counsel for the appellant on this departure from the date originally given, and it was urged that it indicated that the plaintiff's case against the defendant was false. But the first question we have to consider is whether, apart from the other matters which have been put forward to support the view that the plaintiff's case is false, there is any reliable evidence to corroborate the plaintiff's allegation that the defendant seduced her. It seems to be clear that under Roman-Dutch law an action for seduction, where, as in the present case, the seduction was denied on oath by the defendant cannot succeed unless the plaintiff's evidence is corroborated. In Nathan's Common Law of South Africa, Vol. III. (1906), section 1638, at -page 1679, the law on the subject is stated to be as follows: -

1638. In cases of seduction, where the defendant alleges that the girl whom he is alleged to have seduced was not a virgin at the time when carnal intercourse took place, the presumption will be that she was a virgin, and

 the defendant must prove that she had actually had sexual intercourse with another man (XLVIIL, 5, 4). On the other hand, the general rule laid down by the Roman-. Dutch authorities is that in an action for seduction or affiliation (i.e., for maintenance of a child of whom the defendant is the father, or for the lying-in expenses of the plaintiff the plaintiff's oath that the defendant is her seducer or the father of her illegitimate child must, if the defendant on oath denies the imputation of seduction or paternity, be corroborated by evidence aliunde, that is, by extrinsic evidence (XLVIIL, 5, 6; Grot., Int. III., 36, 8; Van Leewen's Roman-Dutch Law, IV., 37, 6; 2 K. 303)). Failing such evidence aliunde, the man's oath will be entitled to preference (Classon v. Durrheim, Buch. 1868, p. 244), and the benefit of the doubt will be given in his favour (Botma v. Retief, Buch. 1875, p. 120). It is impossible to lay down any general rule as to the exact nature of the evidence which is required to fix a person with the paternity of a child .... The plaintiff who seeks to fix the paternity of an illegitimate child on a man must clearly prove it, and must be corroborated by some independent testimony; and in case of doubt judgment must be given in favour of the defendant " (Le Roux v. Neethling, 9 S. C. 247).

The corroboration required must, in my opinion, be corroboration in some material particular, that is to say, (a) by evidence as to some fact or state of things pertaining to the view that the relationship or conduct of the parties supports the allegation of the plaintiff th