P L D 1950 Privy Council 75 (PLP)

LORD RADCLIFFE.-This is an appeal from a decree of the Supreme Court of Ceylon dated the 11th May, 1945. The pro ceedings in which this decree was made were matrimonial pro ceedings instituted by the first respondent against her husband, Mr. Joseph Stanislaus Alles, the present appellant, in which she sought to obtain a decree of judicial separation with consequential relief, including an order for the payment of permanent alimony to her in respect of two children born during the period of the marriage, a girl, Pauline Frances Hortense, who was born in 1938, and a boy, Joseph Richard, who was born on 26th March, 1942. This claim was met by an answer on the part of the appellant in which he denied her right to judicial separation, denied that the boy, Joseph Richard, was any son of his, asserted that the first res pondent had committed adultery with the second respondent, Dr. T. S. NI. Samahin, on several occasions during the year 1941, and prayed for a divorce a vinculo matrimonii and an award of Rs. 25,000 by way of damages against the second respondent. Thus among the matters that were in issue in the suit there arose, though indirectly, the issue of the boy's paternity. On the 11th December, 1942, the trial judge framed the issues and after some discussion he included an issue, numbered 7, "Is the child, Joseph Richard, not a son of the first defendant " It seems to have been agreed that a finding made on this issue in these pro ceedings would not be binding on the boy, but the learned judge decided that he must deal with issue No. 7, since it had a bearing on the main question of matrimonial misconduct on the part of the wife and also because an answer to it would determine the question whether the appellant was liable to pay maintenance in respect of this boy. The trial was a lengthy one, lasting from 11th December, 1942, until 15th February, 1943, and on 27th February, 1943, the District Judge of the District Court of Colombo, Dr. R. F. Dias, delivered judgment. For the purposes of this appeal it is sufficient to note that he held that the first respondent had com mitted adultery with the second respondent on various dates between the 15th February, 1941, and the 20th August, 1941, and that the appellant was entitled to a decree of divorce and to custody of the infant daughter of the marriage. He awarded the appellant a sum of Rs. 15,000 as damages against the second respondent. A detailed review of the evidence led him to conclude that the child, Joseph Richard, could not be a son of the appellant and he decided accordingly that the first respondent was entitled to the custody of that child and that the appellant was not bound to maintain him. Both respondents appealed to the Supreme Court, which on 11th May, 1945, made an order in part upholding and in part reversing the judgment of the District Court. The findings as to adultery and the divorce decree were upheld, but the appellant's damages as against the second respondent were reduced to Rs. 10,000, and a declaration was made that the appellant had failed to disprove the legitimacy of Joseph Richard. Since no appeal is before their Lordships on behalf of either of the res pondents, the only matters that were in controversy before them were the issue as to the paternity of the child and the issue as to the quantum of damages. In both respects the appellant seeks to have the judgment of the Supreme Court reversed and the judgment of the District Court restored. It will be convenient to defer the comparatively minor point as to the quantum of damages until consideration has been given to the legitimacy issue, and it is to the latter, therefore, that their Lordships will first address their observations. One thing at least is clear. In Ceylon the governing rule is contained in a statutory provision, section 112 of the Evidence Ordinance, which reads as follows :-"The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate son of that man unless it can be shown that the man had no access to the mother at any time when such person could have been begotten or that he was impotent." Under this system the Court does not find itself faced directly with the question whether the child whose status is in dispute is or is not the child of his ostensible father. That fact is conclusively proved by the mere circumstance of the birth occurring during the prescribed period, unless whoever denies the paternity can prove, not that the child was not conceived of any union with the ostensible lather, but that that person had no access to the mother at a time when the child could have been begotten or was impotent. It is obvious that in many cases the onus of disproving any access at a time when the child have been begotten must be a heavy one and it is not made the lighter by the uncertainty that still attends much scientific knowledge about the inception and progress of preg nancy. But, that being conceded, a Court that is furnished, as was the trial Court in this case, with an abundance of expert testi mony bearing upon this very issue as to the dates within which Joseph Richard could have been begotten is faced with an issue of fact that is not incapable of being resolved ; and, though it must pro perly require to be well satisfied by the evidence if it is to conclude that such access as did take place did not take place at any time when conception was possible, it is not at liberty to reject an affirmative conclusion in deference to the general uncertainty that pervades the subject or to the existence of some merely theoretical doubt as to the unpredictable achievements of nature. The issue remains whether on the whole of the evidence made available it can safely be concluded that. there was no access at a time when the child could have been conceived. The peculiarity of the present case is that, owing to circum stances that are not material, the only date upon which the appel lant had access to the first respondent during any material period was the 9th August, 1941. The child was horn on 26th March, 1942. The question before their Lordships can therefore be stated in the simplest terms :-"Did the appellant prove at the trial that the child that was born on 26th March, 1942, could not have been begotten as a result of his intercourse with his wife on 9th August, 1941?" The interval between the two dates is 229 days, if both dates are included in the computation. Apart from these two fixed dates a few other matters of evidence may be treated as established. The most important was a detailed description of the child's appearance at birth. This was provided by the testimony of Dr. Wickremasooriya, who had attended the first respondent on her confinement and delivered the child. He described the labour as normal and the child as being " a mature child. By that I mean of complete uterine development. It looked an average full term child." His testimony included details as to the weight of the baby, the condition of its skin, the presence of sub-coetaneous fat, the development of hair, testicles and finger nails and its movements and crying on birth. The doctor said that by the time that delivery took place he was aware that some trouble was brewing between husband and wife and for that reason he " had a good look " at the child. Dr. Wickre masooriya had first been consulted by the wife on 23rd October. 1941. On that date he had made an examination which satisfied him that she was pregnant. He found her uterus enlarged to about four lingers breadth (31 inches in his case) above the junction of the public bone, and he considered that she was 14 to 16 weeks from the start of pregnancy, calculating that from the date of the last menstrual period. On 17th December another examination took place at which he heard the fetal heart sounds. Generally speaking, these are audible after the 20th week of gestation, calculated as before. Now the expert evidence left no doubt that a fully developed child normally appears after a uterine existence of 280 days. This is equivalent to 10 lunar months, or, roughly speaking, y calendar months, although Taylor's Principles and Practice of Medical Jurisprudence, 10th Ed. Vol.. II, page .33, in fact gives274 days as the average of 9 calendar months. There was some dispute as to whether periods of uterine existence as given in medical text books or statistic, are calculated from the date of fertilisation of the female ovum or from the date of the commence ment of the last menstrual flow. Their Lordships are content to proceed on the latter assumption, not only because it seems almost inevitable that in most cases information as to the date of fertilisation or fruitful coitus would he unobtainable, but also because they construe the expert evidence as not raising any con flict on this point. To calculate in this way, failing more precise material as the basis of statistics is not to accept or to import any theory that the uterine life of any particular child can in fact begin before fertilisation has take place. But it does immediately raise the question, which has great importance in this case, whe ther there is any reliable evidence before the Court as to the date upon which the first respondent had her last menstrual flow. At the trial she deposed that she had a period on 12th July. This is 257 days from 26th March and if her statement is to he treated as a statement of fact the child, even if conceived on 9th August, could yet be spoken of as a 257 day child or as a child in the ninth (calendar) month for the purpose of any comparison of its characteristics with those normally attributed to the full-term child. On any view, there would be considerable difficulty in classifying it in this way, for to do so involves the assumption that a fertile coitus took place on the 28th day after the commencement of the last preceding menstrual flow. Medical experience appears to suggest that such an event would be a very exceptional occurrence and a good deal of the evidence at the trial was devoted to the question whether such a conception ought to be treated as a possibility. In their Lordships' view it would be wrong to treat the possibility as excluded even if the respondent was not, as she asserted that she was, accustomed to the onset of her menstrual periods at irregular intervals ; a circumstance which would make it even more difficult to maintain the positive proposition that a fertile coitus on 9th August could not have taken place. But it still remains to consider whether this child could properly be spoken of as a 257 day child on the ground that his mother had her last menstrual flow on 12th July The plaintiff's " whole case stands or falls with this date, ' observed the trial judge in his judgment. After hearing all the evidence he rejected her story and held it to be a false date. The Court of Appeal accepted her story on this point and it is not too much to say that the whole of their treatment of the medical evidence is based upon their assumption that this date is to be relied upon. Lastly, the only expert witness who was called on the plaintiff's behalf, Dr. Thiagarajah, conceded that, if menstruation on the 12th July was not to be accepted as a fact, he would agree that the conception of this child must have taken place some time earlier than 9th August On this issue their Lordships think that it would be wrong to interfere with the trial judge's finding. It is, after all, a question of fact and he had ample grounds for refusing to believe the plaintiff about this matter. Firstly, he found her general evidence untrue, not merely on the question of adultery but also on uncon nected matters. Indeed he had reason to regard her as a witness recklessly indifferent to the truth. Secondly, Dr. Wickreivaso oriya gave evidence that when she first consulted him on 23rd October, 1941, she was confused about the date of her last menstrual period and was not able to give it. She did supply him with the dates 11th to 14th July on a later visit on 17th December. It is very difficult to believe that a woman who professed herself unable to recall the dates on her first critical visit in October would have been able to recollect them two months later. Thirdly, the date she gave in her evidence at the trial was 12th July, not 11th to 14th. In view of the fact that Dr. Gunasakera had given evidence that on 11th July he examined the region of her abdomen and kidneys in connection with an attack of renal colic and neither observed the presence of any safety girdle nor was told anything of a menstrual flow, the change of date to the 12th July might well be regarded as somewhat significant. She said that she could fix the date definitely "because that was the day after Dr. Frank Gunasakera ceased to see me," but it did not appear why this mnemonic was not available to her on earlier occasions. Lastly, the plaintiff called her sister, Miss Merita de Costa, to support her story of menstruation on 12th July : but the account given by that witness was regarded by the trial Judge as being so inherently improbable that he not merely rejected it, just as he rejected her evidence on other matters, but he also treated it as throwing deeper suspicion on the plaintiff's date. To reverse this finding on appeal would be a strong step, only justified if the trial judge had demonstrably misjudged the position. But the reasons for accepting the plaintiff's story which commended themselves to the learned judges in the Supreme Court fall far short of establishing that. It is not that there was not some evidence that tended to confirm her date. She did tell her husband, as he agrees, that she had missed her period in September, the inference being that she had at any rate not missed her periods before then. If she could ba treated as a witness of credit in matters where she is in conflict with other witnesses, there was her evidence that on 23rd October she did give Dr. Wickre masooriya the date of 11th August (on which date she had some bleeding) as the date of her last period. And it is fair to say that his examinations on the 23rd October and at later dates, though they could not be conclusive, led him to estimate a period of pregnancy that was consistent with her having had menstruation on 12th July. But all this is not of great weight, and their Lordships conclude that they ought not to maintain the Supreme Court's reversal of the District Judge's finding for two reasons. One is that Mr. Justice Wijeyewardene's summary of the consider ations that led him and his judicial colleague to accept the plaintiff's story is an inadequate treatment of the relevant evidence. The other is that neither in that passage nor elsewhere in the judgments does any weight seem to be given to the consideration that the Court was reversing a finding of fact by a trial judge who, having heard and tested the evidence of the plaintiff and her sister, had most explicitly disbelieved them. The' result is that the consideration of this case must proceed on the basis that there is no reliable information as to when the first respondent had her last menstrual period. That leaves the bare question whether the appellant has proved that Joseph Richard could not have been begotten on 9th August, no more facts being known than the dates of that coitus and of the child's delivery, the description of the child as he appeared at birth and such evidence as was afforded by Dr. Wickremasooriya's several examinations of the first respondent. Of the three doctors called by the appellant who might fairly be regarded as qualified to give expert testimony on this question, two said with conviction that a child such as Dr. Wickremasooriya described the baby to be at birth could not possibly have been conceived as late as the 9th August. Such maturity of development as Dr. Wickremasooriya observed appeared to them to be impossible in a child whose period of gestation was 229 days from conception to delivery. These two doctors were Dr. Attygalle, visiting Gynaecologist to the General Hospital at Colombo and Lecturer in Gynaecology at the University of Ceylon, who included the F. R. C. O. G. (Great Britain) among his distinctions, and Dr. Navaratnam, also a F. R. C. O. G, Lecturer in Midwifery at the same University, and until recently Superintendent of the Lying-in-Home, to which he had then become the Senior Visiting Obstetrician. Admittedly, their evidence commended itself to the trial Judge, who accepted their views. But it is obvious that he was not bound to accept these views if they appeared to him to be self-contradictory or unsupportable by reason or if he had before him any genuine conflict of expert evidence on this issue which he found it im possible to resolve. It is this that their Lordships will now consider. The foundation of the opinion which these doctors expressed lay in their assertion that medical science recognised that for a fully developed child to be born a period of some 265/270 or 270/275 days must elapse between insemination and delivery. There was no material difference in date between coitus and insemination : consequently 229 days might be taken as the insemination-delivery period of this child if he had been conceived as the result of coitus on 9th August. They did not maintain that the period of 265/270 or 270/275 days was absolute. Dr. Attygalle would allow about 14 days' variation on either sides taking the period as 270/275: Dr. Navaratnam put it at about 265/270 days." But neither was prepared to accept the possibility of so large a variation from the normal as would be involved in 229 days. Now it is true to say that it is impossible to arrive at any certain conclusion, either from a perusal of the evidence or from a study of the various medical text books that were referred to, as to what is the exact relation between the insemination-delivery period as a scientific measure and the more usual calculation from the commencement of the last menstrual period to the date of delivery. Most observations about the development of children at birth must of necessity be based on no more precise knowledge than that of the mother's last menstrual date, and the 265/275 insemination-delivery period presents the appearance of being no more than a deduction from those obser vations, the foundation of which deduction is the belief that insemination normally occurs about a fortnight before the expected date of the next menstrual flow. And there is no agreement among the experts that insemination can only occur or does only occur towards the middle of the cycle. But, when all this is admitted, the fact remains that it appeared quite clearly from the evidence, not of these two doctors only; that medical science does recognize the validity of an insemination-delivery period for the measurement of gestation and that it does use a period of about 265/270 days as the measurement of this. The plaintiff's expert, Dr. Thiagarajah, was not prepared to challenge that proposition. Having regard to this it seems impossible to say that the positive evidence of these two experts that an insemination-delivery period of 229 days could not produce this fully developed child ought to be rejected as an un-maintainable assumption. How far then did Dr. Thiagarajah's evidence come into conflict with that of Dr. Attygalle and Dr. Navaratnam ? It is part of the history of this case that the trial Judge refused to guide himself by Dr. Thiagarajah's evidence and passed some rather severe criticism on his impartiality, even accusing him of twisting scientific facts to suit his theories. Neither of the judges in the Supreme Court thought this adverse criticism justified. Nor would their Lordships wish to repeat it in any sense that suggests that they do not regard Dr. Thiagarajah as a witness trying honestly to give his opinion on a difficult matter in which theory is bound to play an important part. But the trail Judge's impres sion that he was too zealous a partisan and that his zeal led him to advance his theories beyond the point to which they could reasonably go is not so easily got rid of. For instance, his use of Dr. Fernando's bare statement that, when called to the plaintiff at the beginning of her labour, he found that labour had advanced and the membranes were ruptured as indicat ing such a rupture of the membranes as would cause premature labour is really to build a theory without foundation upon an ambiguous phrase that Dr. Wickremasooriya had used in his evidence. The point is not without importance on the question whether Dr. Thiagarajah's evidence raised any material conflict with the other side, since he agreed that, if there was not in fact a premature rupture in the sense in which he understood the phrase, the child whose appearance was described by Dr. Wickremaso oriya could not have been conceived on the 9th August. But, quite apart from this, the fact is that Dr. Thiagarajah's disagreement with the appellant's experts centred on the assumption that the plaintiff had had the menstrual flow to which she testified on or about the 12th July. In the course of his cross-examination he made it plain that if that date was "eliminated" he was not in disagreement with the other doctors and that he would himself accept that conception could not have taken place as late as the 9th August. Since, for the reasons already given, their Lordships are satisfied that the 12th July must be eliminated, to use Dr. Thiagarajah's phrase, it results that there is no conflict between him and the appellant's witnesses upon this, the crucial issue in the case. There remains for consideration the evidence of Dr. Wickrema sooriya. The first respondent relies upon certain answers given by him as showing that he at any rate did not think it impossible that the child delivered by him could have been conceived on 9th August. Now it does not necessarily follow that the trial judge, having before him the evidence of Drs. Attygalle and Navaratnam and the virtual concession of Dr. Thiagarajah, would be precluded from finding against the legitimacy of this child by the fact that Dr. Wickremasooriya had declined to commit himself to the viewthat such a gestation period was impossible. To say that would be to a Dr. Wickremasooriya's caution the determining point of the whole case. Bat, even if this is so, it is impossible to ignore the special significance of Dr. Wickremasooriya's evidence in this particular case. He was both the doctor who had examined the plaintiff from time to time during pregnancy and the only witness, who, since he had delivered the child, could give an eyewitnesses account of its appearance, and he was also a witness who, realising his peculiar position before the trial, had refused to give a proof of his evidence to either side and therefore appeared as an impartial expert, enjoying for that reason a status which was different from that of the other experts called. It is there-fore necessary to examine his evidence with strict attention in order to see to what extent, if at all, it really supported the first respondent's contention. In examining it one or two considerations must be borne in mind. He was a witness the full significance of whose answers cannot always be appreciated from the printed page. In more than one answer the intonation of voice may have made the whole difference. This is of some importance because it is apparent from the judgment of the District Court that the trial judge himself did not regard Dr. Wickremasooriya's evidence as conflicting in any way with that given by Drs. Attygalle and Navaratnam. Indeed he closes his detailed treatment of the question of Joseph Richard's legitimacy with this sentence :-"In spite of several cross-examination, Drs. Wickremasooriya, Attygalle, Navaratnam and Frank Gunasakeva are all agreed that this child could not have been conceived by a coitus on the 9th August." Another thing that tends to obscure the true effect of Dr. Wickremasooriya's evidence is that he gave it on the assumption that he must treat the plaintiff as having really had a menstrual flow from 1lth/l4th July and his calculation were made on that basis. Lastly, it is not unfair to remark that at the stage of the trial when he gave evidence neither the answers of the witness himself nor some of the questions put to him properly disentangled the issue whether the fully developed child delivered by him on 26th March could have been conceived by any coitus on the preceding 9th August from the quite separate issue whether there could have been a fruitful coitus on the 9th August if the plaintiff had had her monthly period about the 12th July. If these considerations are borne in mind, their Lordships think that in the result, Dr. Wickremasooriya's evidence does, as the trial judge thought that it did, support the same conclusion as that of the appellant's other witnesses. What it amounts to is this. His evidence in chief concluded with his reply to the question when "this child" was conceived, that the date was "somewhere round about the first two weeks in July." During the course of his cross-examination he made two replies to questions from the Court, upon which Counsel for the first respondent has naturally placed much reliance. The first is recorded as follows :-- " To Court : " Q. Last menstrual period 12-7. Husband has connection on 9-8. That is the only connection. Child born 26.3. Is that possible ? A. It is possible. It is not impossible. Q. In other words that is a time when Joseph Richard could have been begotten ? A. 32 weeks and 6 days. "Q. Is that a period in which this child could have been begotten ? A. 32 weeks and six days suggests a premature child." Their Lordships are satisfied both by the phrasing and by the context in which the questions appear that the witness, in his answers, was intending to convey that he did not deny the possibility of a fruitful coitus on the 9th August, even so long after what he believed to have been the last date of menstruation, but was not intending to convey that he accepted the possibility of the fully developed child that he saw on 26th March, having been conceived on the 9th August. In substance the other passage comes to the same thing. "(To Court : "Q. Could this child have been conceived on the 17th April ? A. No. " Q. The question then arises, as a medical expert could you exclude the possibility of her conceiving owing to an intercourse on the 9th August ? A. The 9th August is the 30th day of her menstrual cycle. The probabilities are that even if she had a fertile coitus on that date it may not have resulted in a pregnancy, because if the period was just due most likely the fertilised ovum would be cast away with the menstrual discharge. " Q. Could you as an expert say that that is excluded ? If you can't do it the medical evidence fails and the child must be presumed to be legitimate ? A. I cannot make an absolutely certain statement. I can say the chances are against conception. That is that conception is rather remote. " Q. But you can't definitely say it was not ? A. I can't exclude the possibility,)" Here again, however wide an ambit the judge may have intended for his third question, it is reasonable plain that the witness himself is confining his attention to the single issue, could coitus on the 9th August have resulted in pregnancy at all ? and it is that possibility alone that he declines to exclude. Indeed, in his re-examination Dr. Wickrcrnasooriya made his view adequately plain, as the following passage shows : " Q. Suppose on the 9th August a fruitful coitus took place, when would that child be born if the child born was a mature child ? Could the child be born on 26th March ? A. It would not be a mature child. " Q. A child conceived as a result of coitus on the 9th August ? A. I think the child would be a premature child. It would be a premature child. "Q. The child did not turn up to be a premature child? A. No." In these three answers the witness has stated all the material terms of a syllogism of which the conclusion is that the child which did not bear in any way the appearance of a premature child could not have been conceived on the 9th August. For these reasons their Lordships are satisfied that the appellant has sustained the onus, heavy as it is, of proving affirmatively that the only date when he had access to the first respondent was not a date when the child Joseph Richard could have been begotten. In this respect they are unable to agree with the judgment of the Supreme Court in Ceylon. The learned judges who arrived at the contrary conclusion founded their whole consideration of this issue upon the basis that the first respondent did have a menstrual period on the 12th July. This, as has been pointed out, is an unacceptable basis of fact and its acceptance invalidates the reasoning that depends on it. In a case of this sort the final conclusion arises out of an apprecia tion of the evidence as a whole rather than out of a selection of isolated passages of it, and it indicates no lack of respect for the carefully reasoned judgments in the Supreme Court if their Lordships do not set out in detail the points at which their own consideration of the evidence has led them to differ from those judgments. But it may be helpful if they say that, in their view, too little weight has been attributed to the combined effect of the testimony of such experts as Dr. Wickremasooriya, Dr. Attygalle and Dr. Navaratnam ; and too much weight to the evidence of Dr. Thiagarajah and to certain passages from medical text books which, as sources of evidence, suffer from the dis advantages that they were not cited or referred to when the wit nesses were giving their testimony at the trial. There remains the question of the appellant's damages against the second respondent. These were reduced to Rs. 10,000 by the Supreme Court and the appellant has argued that they ought to be restored to the Rs. 15,000 awarded at the trial. The main ground that influenced the Supreme Court appears to have been their view that the appellant had shown carelessness and neglect as a husband in not determining the close association of his wife with the co-respondent. He had indeed committed the error of trusting two people too much : but as one of the two was his wife and the other was his own close friend it is perhaps hard that his error should be a matter of reproach to him. Nor do the references in the judgment of Wijeywardene J, to the financial straits of the second respondent appear to have any admissible bearing on the quantum of damages. But even when that much is said, their Lordships do not feel that they would be justified in interfering with the Supreme Court's Order in this matter. It is avowedly based partly on the scale of damages usually awarded in the Courts of Ceylon : moreover the assessment of the quantum of damages, as indeed the assessment of what is prudent and of what is careless in social relations, depends essentially upon a familiarity with local con ditions which is possessed by the Supreme Court to a much greater extent than it can be by the members of this Board. In the result their Lordships will humbly advise His Majesty that the Decree of the Supreme Court, dated the 11th May, 1945, should be set aside in so far as it directs that the Decree of the District Court of Colombo, dated the 27th February, 1943, should he modified by declaring that the appellant has failed to disprove the legitimacy of Joseph Richard, and in so far as it directs that the District Judge do consider the questions of custody and alimony in respect of Joseph Richard, and in so far as it gives directions as to the costs of the first res pondent's appeal ; and that in lieu thereof there should be an order that the first respondent should pay the appellant's costs of her appeal ; and that save as aforesaid, the Decree of the Supreme Court, dated 11th May, 1945, should be affirmed. As the first respondent appeared informa pauperis before this Board and the appeal failed on the issue of damages which alone concerned the second respondent, there will be no costs of the appeal before their Lordships. A. H. Appeal allowed in Part.