Ali v Nisha [1987] FijiLawRp 15; [1987] 33 FLR 34 (27 March 1987)

[1987] 33 FLR 34

SUPREME COURT OF FIJI

Civil Jurisdiction

AZIZ ALI

v

MEHRUL NISHA

Cullinan J.

27 March 1987

(Affiliation − complainant a married woman −strong and clear evidence of non−access − inference from alleged father accepting child in his home − order made).

G. P. Shankar for the appellant.
A. K. Narayan for the respondent.

Appeal by Aziz Ali (defendant) against a decision of the Resident Magistrate sitting at Ba in affiliation proceedings wherein it was held that the defendant was the putative father of the child of Mehrul Nisha (complainant).

There were put forward four grounds of appeal viz.

"1. THAT the learned trial Magistrate erred in law in making the order against the Appellant in the absence of evidence of non−access by the Respondent's husband as the Respondent was a married woman when she conceived the child in question.

2. THAT the learned trial Magistrate erred in law in making the order against the Appellant in the absence of evidence to corroborate payment of maintenance by the Appellant to the Complainant.

3. THAT the learned trial Magistrate erred in law and in fact in not considering the appellant's explanation about the Declaration filed in Court.

4. THAT the decision is unreasonable and cannot he supported having regard to the evidence".

The complainant was a married woman at the time of the birth on 27 September 1977 of the female child. She had left her husband (by whom she had no children) some years before the birth and lived in a de−facto relationship with the defendant. The defendant's husband relying on this relationship proceeded against her for Divorce citing defendant as co−respondent. A decree absolute was granted on 26 July 1979. The birth of the child was registered on 2 December 1977, there being no particulars given of the father. On 5 December1979 the complainant and defendant jointly swore an affidavit before the Assistant Registrar of Births Deaths and Marriages' in which the defendant acknowledged paternity, and requesting his name to be registered as the father. He supplied the child with necessaries such as clothing for two years after the birth. The cohabitation ended about 1980 whereafter the defendant did not assist to maintain the child.

Defendant denied amongst other things having intercourse with the complainant up to 5 December. He had never lived with her he was not the father of her child. He said he had agreed to consent to paternity on the persuasion of a family friend.

As to the first ground of appeal, authority was cited including Kanda Sami Pillay v. Elizabeth Ram Dulare