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COURT OF APPEAL OF FIJI
CIVIL JURISDICTION
BHAGMATI & ANOTHER
v
ISHRI PRASAD
[COURT OF APPEAL, 1974 (Gould V.P., Marsack J.A., Bodilly J.A.), 15th, 31st July]
Divorce—evidence and proof—admissions of adultery by wife—whether obtained by duress—whether privileged—whether corroboration required—standard of proof—Matrimonial Causes Ordinance 1968 ss. 70, 94(1).
On the hearing of a petition of the husband for dissolution of the marriage on the grounds of his wife's adultery, the evidence rested mainly on her alleged admissions which were made on three separate occasions. The wife/ appellant contended that these admissions were obtained by threats, that they were, in any event, privileged, and that they were uncorroborated. She also contended that the magistrate had applied the wrong standard of proof.
Held: 1. There was evidence to s to support the magistrate's conclusions that the admissions were voluntarily made.
2. The admissions were not made with a view to reconciln and consequently the question of privilege did not arise.rise.
3. Confessions of adultery need not be corroborated where the surrounding circumstances indicated that the confessions were true, or where a wife might make a confession in circumstances where she had everything to lose.
4. The standard of proof to be applied was contained in the Matrimonial Causes Ordinance 1968 s.94(1). The court must have before it sufficient evidence to be reasonably satisfied.
(Per Marsack J.A.) There was a presumption that a child of a married woman living with her husband was their legitimate offspring, but this might be rebutted by evidence clearly establishing that the husband was not the father. In this ease there was doubt whether such proof was present and whether the parentage of the child had been clearly established. The magistrate, however, was required to find only whether or not adultery had been proved.
Cases referred to:
Crawford v. Crawford & Dilke (1886) 11 P.D.br>Theodoreodoropoulas v. Theodoropoulas [1963] 3 W.L.R. [1963] 2 Al 2 All E.R. 772.
Getty v. Getty [ P.D. 334.i>Simpson v. Sim. Simpson (1146 L.T. 47.
AppeaAppeal by a wife agfe against a decree nisi of divorce pronouagainr by direction ofon of the Supreme Court upon a recommendation of a Magistrate's Court.
.K. C. Ramrakha and
31st 31st July 1974.
The followudgmeere read:
BODILLY J.A.:
This is an appeal by a wife against inst a deca decree nisi of divorce pronounced against herhe 7th February 1974, by diby direction of the Supreme Court upon a recommendation of a Magistrate's Court made pursuant to the provisions of section 70 of the Matrimonial Causes Ordinance, 1968 (No. 22 of 1968).
The husband alleged in his petition that he and the wife had been married by civil ceremony on the 28th February 1972, and that thereafter the wife had returned to reside with her parents until a religious ceremony should be conducted according to Hindu rites, both parties being of the Hindu faith. That ceremony took place on the 14th May 1972. The husband alleges that between the civil ceremony and the Hindu ceremony the marriage was not consummated and that it was only after the Hindu ceremony that the parties cohabited as man and wife. The husband alleges that between the time of the civil ceremony and the Hindu ceremony the wife committed adultery with a named co-respondent and was pregnant at the time of the Hindu ceremony. He instituted proceedings for divorce accordingly and cited the co-respondent. The wife and the co-respondent defended. At the end of the husband's case the learned trial magistrate dismissed the co-respondent from the action upon the grounds that no admissible evidence had been produced against him. (Crawford v. Crawford & Dilke [1886] UKLawRpPro 35; (1886) 11 P.D. 150). The evidence against him coim consisted of certain admissions made out of court by the wife naming him as the man by whom she was with child. There was no evidence otherwise before the magistrate to implicate the co-respondent in any way. The magistrate found that he had no case to answer. There is no appeal concerning that decision and this court is not therefore concerned with the matter of the co-respondent.
The evidence against the wife rests mainly upon alleged admissions. She denies the adultery and says that certain admissions which she did make were extracted by family pressure and were not true. Both sides called medical evidence-the husband to corroborate the truth of the wife's admissions and the wife to support her in her denial of their truth.
I will deal firstly with the admissions. The wife is alleged to have made three separate admissions on different occasions.
The husband says that the first time he had sexual intercourse with the wife was on the 19th May 1972. He says that on the 21st July 1972, the wife came to him and said that her father had forced her into the marriage against her will and that she was pregnant by another man and she named the co-respondent as being that man. There appears to have been no witness to that confession. The wife denies that she said any such thing to the husband, and maintains that her pregnancy at that time was by the husband himself. The next admission was alleged to have been made later the same month to the witness Ambika Prasad. He was a member of a local advisory committee and a respected member of the community. He says that he was called to the house of the husband's parents and there, after the husband had explained to him the situation, he interviewed the wife. He says that she told him that she was pregnant and when he asked her who was the father of the child she replied that it was the co-respondent. That admission took place in the presence of the husband and his father. The wife admits that confession but says that she was forced by the husband and his mother to say that. She says " I was afraid. They said if I did not say that they would hit me with a hose pipe ". On the other hand the witness Ambika Prasad said in his evidence-in-chief, "Respondent (the wife) told me this quite freely. She was calm and was sitting down"; and in cross-examination he said "When the Respondent (wife) was in front of me she was not under duress". So the pressure complained of by the wife, if any, must have taken place before the interview. The third admission alleged was made on the 4th August to the witness Dr Duncan. The wife was brought by her husband in company with a man called Nitia Nand to see the Doctor. The purpose of that visit, according to the Doctor, was to verify the date of the wife's pregnancy for the purpose of giving evidence concerning it. From that evidence it would appear that proceedings of some kind were already contemplated by the parties. There appears to have been no question of effecting reconciliation. The visit was in order to establish a fact only. During the course of that visit the wife told Dr Duncan that at the time of her marriage she was pregnant by another man, implying that her husband was not the father of the child which she was expecting.
Turning now to the medical evidence-
The medical evidence is important because the wife in court says that it is not true that her husband first had sexual intercourse with her as late as the 19th May 1972. She says in her evidence that, although it was not according to custom, the husband came to her at her parents' house between the celebration of the civil marriage on the 28th February and the religious ceremony on the 14th May, on a number of occasions and that sexual intercourse took place. She denies sexual intercourse with any other man. The first doctor to see the wife was Dr Duncan. He saw her on the 4th August 1972, He says-
"When I examined her (the wife) on that date she was clinically 20 weeks pregnant ........She said the first intercourse with her husband was on 19th May 1972, which did not fit in with her pregnancy dates. If she gave birth to a child on the 2nd January 1973, it would tally with my finding on the 4th August 1972. Obviously she had become pregnant before 19th May 1972. B are normally boly born two weeks before or two weeks after the expected date."
The wife did in fact give birth to her child on the 2nd January 1973. The next Doctor to see her was Dr Hobbs. He saw her on 11th August and attended her throughout her pregnancy and the birth of her child. Dr Hobbs says-
"I attended Respondent (the wife) when she had a child on the 2nd January 1973. It remained in the hospital for 14 days. The baby at birth was 4 lb. 10 oz.s. On that weight it would be extremely unlikely to be a full term child. It was to some extent premature. It was nearer an 8 month baby than a 9 month ............ I say that at 4.8.72 this baby was not a 20 week foetus. In my view as at 4.8.72 she was 14 weeks pregnant".
Finally Dr Kapadia saw the wife. He saw her on the 28th November 1972. It appears that Dr Kapadia saw her in the absence of her relatives. She asked about the state of her pregnancy. The doctor in his evidence says-
"My calculations show that her last period would have been in the last week of May. She said her last period was two weeks before her marriage. If Dr Duncan examined her on 4.8.72 and said she was 20 weeks pregnant, he would be wrong. If Dr Hobbs says he examined her on the 11.8.72 and found she was 15 weeks pregnant, he could be right ......... My calculations show that the child was conceived on about 9.6.72."
Drs Duncan and Hobbs were called by the husband and Dr Kapadia by the wife. The result of that evidence seems to me to be that the evidence of Dr Duncan supports the husband's contention that sexual intercourse occurred before the Hindu marriage on the 19th May 1972 but does not assist as to the question with whom that intercourse took place. On the other hand Drs Hobbs and Kapadia tend to show that sexual intercourse did not take place before the 19th May 1972. Whatever the actual date of conception may have been it is a fact that the child was born on the 2nd January 1973. A nine months child would therefore have been conceived about the 2nd May 1972, but in this case there is the evidence that the child was "somewhat premature". However the medical evidence be regarded, it is a close run thing.
The learned trial magistrate found as a fact that the child was not that of the husband. He also found as a fact that the damaging admissions in this regard made by the wife before the commencement of proceedings were not made under duress. He based his standard of proof when reviewing the evidence before him upon "a reasonable satisfaction".
There were originally seven grounds of appeal filed but at the hearing of this appeal Mr Ramrakha, appearing for the wife, abandoned two of them. The remaining grounds of appeal may be summarised as follows-
(1) That evidence of the alleged confessions made by the wife was inadmissible as having been obtained by threat or duress;
(2) That the evidence of the confessions made to the witnesses Ambika Prasad and Dr Duncan was inadmissible on the grounds of privilege and lack of corroboration;
(3) That the trial magistrate ignored the medical evidence as to the age of the child and in general found against the weight of the evidence viewed as a whole; and finally
(4) That, as the effect of the proceedings was to bastardise a child, the standard of proof adopted by the trial magistrate was wrong.
As regards ground (1) as summarised above, it is clear law that if an admission is obtained by threats or duress it ought not to be relied upon against the party making it. Mr Ramrakha has argued that in this case there is the evidence of the wife to the effect that she was threatened that unless she confessed in the way she did she would be beaten with a hose pipe. He says furthermore that she was only a young girl of nineteen and was at the time of the confessions made both to Ambika Prasad and Dr Duncan directly under the influence of her husband who was present on both occasions. The learned trial magistrate applied his mind to the matter, reviewed the evidence and came to the conclusion that there was no reason to suppose that the confessions were made under duress. He found as a fact that they were voluntarily made. I consider that he had before him ample evidence upon which he could come to that conclusion and I can see no reason for this court to interfere with that finding of fact.
Ground (2), as summarised, raises the question of privilege and corroboration. It was argued that the interviews with Ambika Prasad
and Dr Duncan were both on privileged occasions because the visits must be taken to have been made with a hope of bringing about
a reconciliation. Our attention was drawn to the case of
Together with the question of privilege was argued the question of corroboration. It was argued that the confessions ought not to have been admitted because there was no sufficient independent evidence to indicate that they were true, for the wife was denying the truth of what she had said. Our attention was drawn to a number of authorities to the effect that confessions or admissions of adultery by a respondent must be jealously scrutinised. I do not think that there is any dispute regarding that general principle. It is also not disputed that the court may in certain cases act upon an uncorroborated confession of adultery where the surrounding circumstances indicate that the confession is true, (Getty v. Getty [190D. 334), or where a wifa wife may make a confession in circumstances where she has everything to lose. (Simpson v. Simpson (1931) 146 L.T. 47). It seems to me that the real question here is whether the learned trial magistrate was justified in concluding from the circumstances disclosed by the evidence that the admissions relied upon were trueone is to believe the husbahusband, as the learned magistrate did, when he says that no sexual intercourse took place between himself and the wife before the 19th May 1972, then the medical evidence of both Dr Hobbs and Dr Duncan tend to support the truth of the wife's original confessions, namely that the child which she was then carrying was not that of the husband. On the other hand if one does not accept the husband's evidence as to that but accepts the wife's evidence at the trial that the husband had sexual intercourse with her before the 19th May, then the same evidence supports the wife's contention that her original confessions were untrue. It is to be noted that both sides in argument before the court sought support in the same evidence. The learned trial magistrate accepted the evidence of the husband as true, and not that of the wife, and in doing that found corroboration in the medical evidence. It is also clear that the three confessions were in each case wholly against the wife's interests. Unless the wife had volunteered the confession to her husband in the first place there is nothing to show that the adultery need ever have come to light at all. Certainly the medical evidence, such as it is, could not of itself have established that the birth of the child was anything out of the ordinary. It was in any event a premature birth.
I think that the magistrate was entitled to ask himself the question-why did the wife confess, and why did she repeat the original confession on two subsequent occasions to two different persons in circumstances which the magistrate found to be voluntary? Although the wife was a young girl of only nineteen at the time, it is inconceivable that she did not know the seriousness of an Hindu wife confessing to adultery. She had been brought up in a strict Hindu family. Her father was a priest. She must have known that such confessions would be disastrous to her marriage - and yet she made them. I have given anxious consideration to this matter and have come to the conclusion having regard to all the circumstances that the learned trial magistrate had sufficient indication before him on the evidence that the confessions were true to justify him in acting upon them.
I will comment upon the grounds of appeal (3) and (4) as enumerated above together, namely that the magistrate found against the weight of the evidence as a whole and that he based his findings upon a wrong standard of proof. The standard of proof to be applied in Fiji is specified in section 94(1) of the Matrimonial Causes Ordinance 1968 (No. 22 of 1968) which reads-
"94. (1) For the purposes of this Ordinance, a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court."
In my view that section was clearly enacted to put to rest once and for all, so far as Fiji is concerned, the vexed question of standard of proof in matrimonial causes. I need not look beyond it. The court must have sufficient evidence before it to be reasonably satisfied. I think it is clear that a court would not be reasonably satisfied upon a mere balance of probability, on the other hand I do not think that the standard of proof required by that section is as high as that in criminal cases, namely beyond any reasonable doubt. It lies somewhere between the two. In this case I think that the court, having accepted the truth of the wife's confessions and taking into account the medical evidence, such as it is, had evidence upon which it could be reasonably satisfied of the adultery alleged. It was urged by Mr Ramrakha that where the effect of the proceedings were to bastardise a child, strict proof must nevertheless be required. I can find nothing in the Ordinance to support that view. The standard of proof there set out makes no exception, though perhaps one might expect a court in such cases to take a stricter view of the evidence than might otherwise be the case. However that may be, I think that here, once the confessions are treated as acceptable, the learned trial magistrate had ample evidence to support his findings.
I would dismiss the appeal with costs.
MARSACK J.A.
I have had the advantage of reading the judgment of Mr Justice Bodilly, and agree, for the reasons set out in that judgment, that the confessions of adultery made by the appellant must be accepted as establishing adequate grounds for granting a decree of divorce against her.
At the same time I have definite reservations with regard to the finding of the learned Magistrate that the child is not a child of the marriage. The presumption that a child born of a married woman living with her husband is their legitimate offspring may, of course, be rebutted by evidence clearly establishing that the husband is not the father of the child; but I doubt whether there is such proof in the present case. The medical evidence is inconclusive as to the date of the conception of the child; and some of it is consistent with the theory that the child may have been conceived when intercourse admittedly took place between husband and wife on the 19th May 1972. There is the further possibility that intercourse between husband and wife took place before that date, though this may be considered doubtful. In the circumstances surrounding the confession of the wife, in the presence of her husband and his father, to Ambika Prasad, that the co-respondent was the father of the child she was expecting, I hesitate to accept that as necessarily a truthful confession. It may well be that the co-respondent is the father of the child; but the possibility that the petitioner is the father cannot, in my view, be entirely ruled out.
I fully realise that an appeal Court will be very reluctant to upset findings of fact made by a Judge or Magistrate who has heard and seen the witness giving the evidence in question. Even giving full value to what is said in the judgment from which this appeal is brought, I find myself in grave doubt as to whether the parentage of the child has been clearly established. In any event it does not appear that that was an issue requiring determination by the learned Magistrate; what he was required to find was only whether or not adultery had been proved.
Subject to that qualification I agree that the appeal, which is against the granting of the decree nisi of divorce, should be dismissed.
GOULD V.P.
I have had the advantage of reading the judgment of Bodilly J.A. in this matter. I agree with his reasoning and conclusions and with the order he proposes. In accordance with the unanimous opinion of the members of the Court the appeal is dismissed with costs.
Appeal dismissed.
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