BORN IN WEDLOCK

Gisborne Times, Volume LXXII, Issue 11453, 2 March 1931, Page 2

BORN IN WEDLOCK

is chiCd illegitbiate? CASE AVITHOtJT PRECEDENT. APPEAL BY AXJCKI-AND CHINA - , MAN. ;

A case staled to he without pyc.ee dent in British, law was- heard- by - Justice Hardman in the Auckland Supreme'Court when the legitimacy of a child bom in wedlock was question. The proceedings arose ii°m an appeal by a Chinese,. Ah 11 c ‘ (Mr Tong) ~ ..against affiliation an maintenance orders made agams ' in respect of the child, in the A agis trate’s Court by Mr F. K, Non » S.M., on September 30, 1930. H° appealed on the grounds that the ma gistrafe was wrong in both fact am law, that there was no evidence that he was the’child’s father, and that there was no evidence that the child was illegitimate. The appeal was op posed by the Child Welfare Department, for which Air Hubble appealed.

“If the child is proved by evidence other than that of tho mother to be half Mongol it cannot be a legitimate child,” said Air Hubble, who stated that the original ' proceedings had been taken by the Child Welfare Department, which at present had custody of the child. A divorce had been granted tho parties late in 19.30 on tho ground of the mother’s adultery with the appellant, and the department had then taken proceedings for the maintenance of the child.

“I have to satisfy Your Ifonor that the child is not legitimate and am forced to do that without the mother’s evidence” continued counsel, who said that Hie woman could not illegitimiso her own child. “There has never been an affiliation case where such evidence has been given,” continued counsel. “It is an impossibility for the husband of the woman, to have been the father of this child. He cannot give evidence td show he is not tho father, but can call evidence to show he could not be. The evidence I rely on to prove that the child is half Afongol is, firstly, medical evidence. Secondly, it is shown by the Court records' that a divorce Was granted on the husband’s petition, AJi Chuck being named as corespondent, on the grounds of.' adulterv.”

“This is an. extraordnary case,” remarked Air Tong, who said the question was not whether the magistrate had made a right order, but whether he had the right to make any order. I was the first ease in which an affiliation order had been made in respect of the child of a married woman who had been living with her husband prior to the birth of the child. “If Your Honor lays down the principle that the child is illegitimate because it is the offspring of the union of a black person and a white person, you are going further than has been gone in any other case,” concluded counsel.

His Honor: These pi hep cases did not deal with the color question. Dr. AY. N. Abbott said he was definitely of opinion that .the child was a half-caste. “I can only -say. that it- is a cross between a Nordic and a Alongol,” he added. - “This question apparently has not been decided before, so it is desirable that anything I say should be put down in writing,” said His Honor, who reserved his judgment.