Ally Khan v Abdool (Mauritius)

In paternity proceedings, a sibling DNA test is less conclusive than direct parentage testing, but it remains relevant evidence and must be addressed alongside other evidence. A trial judge who reaches a different conclusion from expert evidence must give reasons. Under Mauritian Civil Code article 340, the fifth cas d’ouverture can be satisfied by a capital contribution towards a child’s support or education; continuous payments are unnecessary. Where a putative father retains exclusive control of a joint account during life, the relevant participation may continue until death for limitation purposes. If omission of relevant evidence makes a paternity finding unsustainable, the appellate court may remit the issue for rehearing before a different judge. Post-mortem testing and the character of a paternity admission were left to the fresh trial.

Nushrat Begum Abdool brought an action en recherche de paternité to establish that she was the natural daughter of the late Peer Ally Khan and to amend her birth certificate. The action was brought during her minority against his acknowledged natural son, Ibrahim, and adopted son, Fahd. A sibling DNA test between Nushrat and Ibrahim indicated that a family relationship was very remote. Devat J nevertheless found paternity established and held that the action was brought within time under the fifth cas d’ouverture in article 340 of the Mauritian Civil Code. The Court of Civil Appeal dismissed the defendants’ appeals. The central issues before the Board were the treatment of the DNA evidence, limitation, the effect of a capital payment and the possibility of post-mortem testing.

Appeal allowed. The finding of paternity was set aside and the claim was remitted for rehearing before a different judge. The Board declined to substitute its own finding because the evidence did not lead inexorably to either conclusion.

1. Under article 323 of the Mauritian Civil Code, a judge is not obliged to accept expert evidence, but must give reasons for reaching a different conclusion. A sibling DNA test is less conclusive than direct parentage testing and is directed to the relationship between siblings. It is nevertheless relevant to the evaluation of paternity. The trial judge considered the test only in relation to the fin de non-recevoir and did not address it when assessing the evidence of paternity. That omission made the finding unsustainable.
2. The fifth cas d’ouverture in article 340 is not confined to continuous payments. In an appropriate case, a capital sum provided for a child’s support, maintenance or education can satisfy the provision.
3. Where funds are placed in a joint account but the putative father retains exclusive control during his lifetime, the relevant participation need not be treated as complete on the date of transfer. It may continue until his death for limitation purposes. The claim was therefore commenced within the applicable two-year period.
4. The Board expressed no opinion on whether letter P1 constituted an unequivocal admission of paternity under the relevant cas d’ouverture. That question was left to the new trial judge in light of the evidence as a whole.
5. The Board also declined to decide whether post-mortem DNA testing was authorised or appropriate. If pursued, the issue required full submissions before the new trial judge, including consideration of Mauritian law, possible reliance on section 8 of the DNA Identification Act 2009, feasibility and appropriateness.

The limitation issue was no longer live. The rehearing could proceed to the paternity issue, subject to any application for post-mortem testing.

1. Privy Council: In [2020] UKPC 28, allowed the appeal, set aside the paternity finding and remitted the issue for rehearing before a different judge.
2. Supreme Court of Mauritius, Court of Civil Appeal: dismissed appeals against Devat J’s orders declaring paternity, directing amendment of the birth certificate and holding that the action was brought within time.
3. First instance: Devat J accepted the plaintiff’s evidence, found paternity established and held that the action was within the limitation period.