Ally Khan (Appellant) v Abdool (Respondent) (Mauritius) (No 2)

Ally Khan (Appellant) v Abdool (Respondent) (Mauritius) (No 2)

The trial judge erred by failing to consider relevant DNA evidence in the assessment of paternity. The finding of paternity is set aside and the matter is remitted for rehearing before a different judge. The claim was not time-barred as the capital payment into the joint account constituted participation in maintenance and education, and the action was brought within the prescribed period.

Parties
Plaintiff/respondent: Nushrat Begum Abdool; Defendant/appellant: Ibrahim Rossanally Peer Ally Khan; Defendant/appellant: Mohammad Fahd Peer Ally Khan
Jurisdiction
United Kingdom
Judgment Date
23 July 2020
Procedural Posture
Civil Appeal / Appeal From Supreme Court of Mauritius to Privy Council
Outcome
appeal allowed; finding of paternity set aside; matter remitted for rehearing
Legal Topics
Paternity, Limitation Period, DNA Evidence, Maintenance and Education of Child, Admission of Paternity
Family Law Succession Law Paternity Limitation Period DNA Evidence Maintenance and Education of Child Admission of Paternity

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Parties

Nushrat Begum Abdool

Plaintiff/respondent

Ibrahim Rossanally Peer Ally Khan

Defendant/appellant

Mohammad Fahd Peer Ally Khan

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Supreme Court of Mauritius to Privy Council

Legal Issues

  1. 1 Whether the trial judge erred in excluding DNA evidence in determining paternity
  2. 2 Whether the plaintiff's claim was time-barred under article 340 of the Mauritian Civil Code
  3. 3 Whether a capital payment constitutes participation in maintenance and education under article 340

Ratio Decidendi

The trial judge erred by failing to consider relevant DNA evidence in the assessment of paternity. The finding of paternity is set aside and the matter is remitted for rehearing before a different judge. The claim was not time-barred as the capital payment into the joint account constituted participation in maintenance and education, and the action was brought within the prescribed period.

Court Disposition

appeal allowed; finding of paternity set aside; matter remitted for rehearing

Orders

  • The plaintiff's claim is remitted to a fresh judge for determination of the paternity issue.
  • Limitation is no longer a live issue; the claim was brought within time.