WX v WW

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 25 March 2009
• Neutral Citation: [2009] SGHC 70
• Docket Number: District Court Appeal No 3 of 2008
• Date: 25 March 2009
• Year: 2009
• Published date: 06 April 2009
• Plaintiff Counsel: Irving Choh and Stephanie Looi (KhattarWong)
• Citation: [2009] SGHC 70
• Defendant Counsel: Krishnan Nadarajan (Aequitas Law LLP)
• Court: High Court (Singapore)
• Subject Matter: Whether biological father could rely on s 114 as defence against duty to pay child maintenance under ss 68 and 69(2) Women's Charter (Cap 353, 1997 Rev Ed),Child maintenance sought from biological father when s 114 Evidence Act (Cap 97, 1997 Rev Ed) presumed child as legitimate daughter of another man,Presumptions,Evidence,Proof of evidence,What was the purpose of s 114,Presumption of legitimacy

25 March 2009

Lee Seiu Kin J:

1 This is an appeal against the decision of the District Judge holding that the appellant is liable to pay maintenance for the respondent’s daughter (“the Child”) pursuant to s 69(2) of the Women’s Charter (Cap 353, 1997 Rev Ed)(“the Charter”) on the ground that the appellant is her father. I dismissed the appeal on 28 August 2008. The appellant subsequently sought leave under s 34(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) to appeal to the Court of Appeal on the ground that the part of my decision concerning the interpretation of s 114 of the Evidence Act (Cap 97, 1997 Rev Ed)(“the Act”) pertains to a point of public interest in that there is no authority on its application to a case such as the present one. I granted leave to appeal and the appellant filed his notice of appeal on 30 October 2008.

2 The background facts are as follows. Prior to meeting the appellant, the respondent had a boyfriend (hereafter called “H”) with whom she was intimate. Sometime in 2001 the respondent met the appellant and the respondent claimed that very soon thereafter she had sexual intercourse with him. In February 2002, the respondent went to Australia to further her studies and while she was there, she kept in touch with both men. The respondent claimed that when she returned to Singapore at the end of 2003, she continued dating both men and had sexual intercourse with them. In May 2005, the respondent went to Sydney with the appellant and, according to her, they had sexual intercourse during the trip. In June 2005 the respondent discovered that she was pregnant. Accompanying her at the pregnancy test was H, and he immediately proposed marriage in the belief that the Child was his. They married and the respondent gave birth to the Child on 21 January 2006. Unfortunately for the marriage, it became apparent to H from the blood group of the Child that he was not her biological father. He procured a DNA test to be done which confirmed that he was not the biological father of the Child. H commenced proceedings that eventually resulted in the nullification of the marriage. The respondent thereafter sought child maintenance from the appellant in the District Court pursuant to s 69(2) of the Charter.

3 Before the District Judge, the only fact in dispute was whether the appellant was the father of the Child. The appellant claimed that he never had sexual intercourse with the respondent and therefore the Child could not be his. However he did not submit to a DNA test that, although it would not prove that there was no sexual intercourse between them, would certainly conclusively show that the Child was not his. Of course it could also quite conclusively show that the Child was his. The respondent on the other hand insisted that she only ever had two sexual partners in her life and they were H and the appellant. The respondent also was adamant that she had sexual intercourse with the appellant while they were in Sydney, a month before she tested positive for pregnancy. At the end of the trial the District Judge found as a fact that the appellant had sexual intercourse with the respondent at the relevant time and further, that he was the biological father of the Child. Accordingly the appellant was ordered to pay maintenance under s 69(2) of the Charter, the quantum of which would be decided after further hearing.

4 Before me, the appellant appealed against the decision of the District Judge. After hearing submissions on both sides, I dismissed the appeal and affirmed the decision of the District Judge. I agreed with the finding of fact of the District Judge at the end of the trial that the appellant was the biological father of the Child and her further finding that he had refused to provide reasonable maintenance. I upheld the District Judge’s order for the appellant to pay maintenance to the Child.

5 The appeal pertains to the appellant’s submission in respect of s 114 of the Act, which provides as follows:

Birth during marriage conclusive proof of legitimacy

114. The fact that any person was born during the continuance of a valid marriage between his mother and any man … shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. [emphasis in original]

6 The appellant contended that the fact the Child was born during the continuance of a valid marriage between the respondent and H is, by operation of s 114 of the Act, conclusive proof that the Child is the legitimate daughter of H and, ergo, the appellant cannot be her father. Attractive as this argument may seem, acceptance of the appellant’s submission would mean that s 114, a rule of evidence establishing a presumption, can override the strongest scientific evidence simply on the basis of marital status. The respondent had sexual intercourse with the appellant and H during the period that she was fertile and some nine months later the Child was born. Adopting the appellant’s position would mean that, even if the DNA test were to show that the appellant is the biological father, by virtue of the fact that the respondent was married to H at the time of birth, the law would hold that H is the father of the child even though the science has shown otherwise. It is clear that this rule of evidence has for its basis, social policy rather than scientific reality. The appellant’s position offends both justice and commonsense, but if the provision were free from ambiguity and clearly applies to the facts of the present case then I would be constrained to make that holding no matter how unsatisfactory the result may be. However in my view, s 114 is not free from ambiguity in relation to the facts of this case. This is because it does not state that the child is conclusively proved to be the biological son of the husband, which is the fact in issue here. In order to divine the exact scope of s 114, it is necessary to consider the background of the provision.

7 The presumption in s 114 of the Act has its origins in the common law presumption of legitimacy, which was introduced to avoid severe penalties levied on a child (such as in the areas of inheritance) as a result of illegitimacy. Section 114 was introduced as part of the Evidence Ordinance 1893 (No 3 of 1893) of the Straits Settlements which was based on the Indian Evidence Act (No 1 of 1872). Sir James Stephen, the draftsman of the Indian Evidence Act essentially codified the common law rule as it stood in the nineteenth century. It should be noted that at that time conclusive proof of paternity was not available – that is, neither blood nor DNA tests were available to determine the paternity of a child. It is clearly a measure to avoid the bastardising of children. Thus, once the primary facts of s 114 are satisfied, the only method of rebutting the presumption of legitimacy is that of non-access which, at the time, was the means of disproving paternity – per Choo Han Teck J in AD v AE [2005] 2 SLR 180 where the learned judge said at [8]:

Section 114 of the Evidence Act was promulgated at a time when it was not contemplated that the paternity of a child could be proved scientifically at a level of confidence beyond 99.9%. It was intended to avoid bastardising children and the social stigma that attached to it, more...