Karuppiah Kangany V. Ramasamy Kangany

1950 Present: Swan J.

KARUPPIAH KANGANY, Appellant, and RAMASAMY

KANGANY, Respondent

S. C. 701-M. C. Badulla, 8,754

Maintenance Ordinance (Cap. 76)-Section 6-Application for maintenance of illegitimate child-Evidence of mother of child-Not an essential requirement.

Defendant was sued for maintenance for an illegitimate child born to one K a deaf and dumb woman. The application was made by K's father, and K herself did not give evidence.

Held, that section 6 of the Maintenance Ordinance cannot be interpreted to mean that the evidence of the mother is an essential requirement, that without it a Magistrate would have no jurisdiction to make an order for the maintenance of an illegitimate child.

APPEAL from a judgment of the Magistrate's Court, Badulla.

H. W. Tambiah with V. Ratnasabapathy, for the defendant-appellant.

No appearance for the applicant-respondent.

Cur. adv. vult.

September 15, 1950. SWAN J.-

In this case the defendant-appellant was sued for maintenance for an illegitimate child born to one Kadiraie, a deaf and dumb woman. The application was made by Kadiraie's father who is the respondent to this appeal. Kadiraie herself did not give evidence. Although she is a deaf and dumb person her evidence could have been given by signs. Section 119 of the Evidence Ordinance makes provision for the reception of such evidence.

Mr. Thambiah, who argued the appeal, strenuously maintained that without the evidence of the mother the application could not succeed. He contended that under section 6 of the Maintenance Ordinance the evidence of the mother was necessary to entitle a Magistrate to make an order for the maintenance of an illegitimate child. That section primarily deals with the period within which an application for the maintenance of an illegitimate child should be made. It concludes thus :

"And no order shall be made on any such application as aforesaid on the evidence of the mother of such child unless corroborated in some material particular to the satisfaction of the Magistrate."

In support of his contention Mr. Thambiah cited the case of The Queen v. Armitage and another, Justices of the West Biding of Yorkshire1[1871 {1872) Law Reports Q. B. Vol. 7, p. 773.]. It was there held that a bastardy order could not be made without the mother of the child being examined as a witness. In that case the mother died after the issue of summons and before the hearing, and the Court upon the construction of the particular enactment which governed the matter held that, in the circumstances, the justices had no jurisdiction to make an order.

The relevant sections of the enactment are set out as a footnote to the case. It would appear from a perusal thereof that the mother's evidence was a requirement that could not be dispensed with. Hannen J. who delivered the judgment of the Court said: "But we are further of opinion that it was the intention of the legislature, having regard to the peculiar nature of such inquiries, that the mother should support her accusation by her oath and submit herself to cross-examination. The paternity of the child is a fact as to which no evidence can be satisfactory without the statement of the mother; and the peculiar language of the statute requiring that the evidence of the mother shall be corroborated by other testimony cannot, as it seems to us, be given effect to without holding that the mother herself must be a witness on her own behalf."

In my opinion the language of section 6 of our own Ordinance cannot be interpreted to mean that the evidence of the mother is an essential requirement, that without it a Magistrate would have no jurisdiction to make an order for the maintenance of an illegitimate child. All it says is that upon the uncorroborated testimony of the mother a Magistrate cannot make an order against the putative father.

It should be noted that our Ordinance provides for the maint

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