procedure is governed by the lex fori.

Confli~of laws - Public policy - Court not bound to apply personal lall
of the parties vlhere for reasons of public policy sufficient reason
exists not to do so.

Family la\~ - Paternity of child - Child born during the continuance of
lawful marriage - Claim by third party to paternity of the chila. -
Position under personal la,~ of Greek Civil Code - Applicability to
Sudan under Civil Justice Ordinance 1929. SSe 5(a) and 9. - Husband
 or guardian ad litem as necessary parties.

Personal law- Public poligy - Unusual facts - Basis for refusing to
apply personal la .••• 1 of part ies.

Plaintiff instituted suit to declare that he was the natural
father of a child born to defendant during her marriage to another
man and an order for custody. Defendant's husband was not made a
party.

* Court: Bennett:, C.J., Evans, J. and Platt, J.

~: (i) \ihen the personal law of the parties is applicable under
section 5 or 9, Civil Justice Ordinance 1929, the Sudan Court is not
bound to apply that law, wher-e , for reasons of public policy, or
because it is sought to enforce unusual rights or remedies, or
otherwise on a view of justice, ~quity and good conscience, there
exist good and sufficient reasons not to do so.

(ii) For the protection of the institution of marriage and of
family life, the court should not permit a stranger to_o the marriage
to claim to be the father of a child born during the continuance of
the marriage, save in the most exceptional circumstances. No suoh
circumstances have been alleged.

(iii) The Greek Civil Code admits no such right when the husband
has disavowed paternity.

(iv) The husband of the defendant or a guardian ad litem of the
child were necessary parties, and the decree could not otherwise
stand because in their absence any decree as to the child's
paternity would be meaningless exoept as forming some kind of
estoppel in subsequent proceedings between the present parties.

Civil Justice O~dinance 1929, SSe 5(a), 9, and s.6.

Gre/~Civil Code, Articles 1465, 1471, 1472, 1474, 1475, 1532, 1540,
t542, and 1662.

Appeal.

,\!!jl\~:.:\I,}:'6, ,1:d,.l,4, :Ht>nlle1j_~_~C:\l.:Thir:; i[] a.11 t.ppee.L from the decree of the
High COuI"~ t K;lL"I.l'tOUJ'.1, in a Quit in ~Jhich plaintiff, the respondent and
cross-appellant claimed, first, a declaration that he was the father of
a male child of the defendant, who. is the wife of a Dr. Cambouris to
whom she has been married since 1931, and second, the custody of the
child.

It was agreed by the parties in the court below that their rights
in issue in the suit were governed by Greek law, that law being the
personal law of both the part ies and of the defendant's husband. \ihere
the rights in issue in a case are not covered by any other provision of

the law of the Sudan, the law to be applied is governed by Civil Justice
Ordinance 1929, ~. 5 or s. 9. I have some doubt whether the expression
"custom applicable to the parties concerned" in secttlon 5 (a) includes

the personal law of the parties, or of one or. more of them, but, whether
the personal lai. of the parties is applicable, either as a custom under
section 5 (a) or, pursuant to the generally reoognised prinoiples of
private international law, under section 9, that application is, in

either case, subject to the principles of justioe, equity and good
consience. The court is not bound to apply the personal iaw in any

case where, for reasons ~f public pol'cy, or because it is sought to
enforce unusual rights o~ remedies, or otherwise in justice, equity and
good conscience, there exist good and sufficient reason not to do so.

In my opinion, the respect due to the institution of marriage and the
conservation of the family demands, as a matter of public policy (except
possibly where it is clearly otherwise in the overwhelming interest of

the ohild) that no man should be able, against the will of the husband

and Wife, to come forward and claim either the paternity or the cust~

of a child born to a vlife during the oontinuance of the marriage. This

is so whether or not he can prove beyond doubt that he is in fact the
child's natural father. To decide otherwis.e. would, as it seems to me,
strike at the root of the marriage tie, and expose the fami~y to disruptive
action at the whim of a person not a member thereof. If the child is
branded as a bastard, or is given over to the custody of a stranger to

the family, the danger to the continuance of the marriage tie and the
holding together of the family unit is obvious. It m~ be that, where

some other legal right or interest is the bona fide subject of a suit,

and the legitimacy or otherwise of such a child is relevant to the
existence of such right or interest, the courts will allow the question

of legitimaoy to be raised, and will decide it. But apart from such a
case, it is for the husband in such an eventuality as is here in question
to decide whether the marriage tie and the preservation of the family

unit shall continue, or whether he will imperil both by disavowing the
child. Wo such overwhelming interest of the child, or any other legal
right or interest such as would justify interference i'lith the state of
things which public polioy appears t;, me "1;0 demand was alleged in the
plaint upon which this action was founded and, in my opinion, the plaint
should have been dismissed as showing no cause of action. This would
ordinarily be sufficient to dispose of the appeal, but in a world of
changing ideas, different· not ions of 'what is or is not permissible, having
;~egard to the demands of public polioy, m~ well be held, and I do not
"/ish therefore to base ey judgment solely on this ground.

There are perhaps no more distressing cases than suits for the

custody of a child to whom both parties are attached by ties of affection
and perhaps of blood, distressing as much to the oourt, perhaps, as to

the parties. In his obvious desire to do vlhat seemed to him L>1 the best
interests of all concerned , the learned Judge of the High Court ;:"llm.ed.
himself to be ~ersuaded int 0 teJdng what is, in my opinion, em erroneous
view of the Greek la'l'l, and I do not think that he C2l1 fully have appreciat'ed
the effects of the decree he has passed.

Artiole 1465 of the Greek Civil Cod.e enunc1ates, subjeot to certain
conditions of time vlhich do not arise in this "case, the g~neral B..'1d
universal principle •• hich is the corner-stone of the civil il'isti tutiOl:$.
of marriage, that any child born to the wife during the corrt Inuance of
the marr-Iage is presumed to be the legitimate issue. of -the husband ,

Article 1471 provides that the husband may disavow such a ch i.Ld,

if he proves that during the period of possible conception it 1;/,="S o'.:viously
impossible, particularly because of his iopotence or absence, for his

I-life to have conceived the child by him.

',f Article 1472 pz-ovi.dec first that such disavowal shall be in the form
of an action against a guardian ad litemof the child, specially appointed
for the purpose, and, second, that a third party possessing a legal
interest so to do, cannot invoke the illegitimaqy of the child Q'1til an
action by the husband in disavot-Ial of the child has been instituted.

Article 1474 provides that the action in d.i savoua.I o~ the child
shall not be brought by the husband after the lapse of one year from the
date when he first knew' of its birth or, if he die during that period,
by his heirs after the lapse of three months from his death.

Art icle 1475 provides that :;~hat if, at any time prior to the actual
delivery of the judgment in the action for disavowal, the husband
recognises the child as his, no disavoHal is thenceforth possible.

These provisions of the Greek Civil Code appear to me to be perfectly
straightforward and unambiguous and to be designed to protect C't once the
child, the institution of marriage, and the conservation of the family.
They all appear in section 9 of the Code under the heading "Legitimaqy

of the Child", and in my opinion their combined effect is to establish a

(presumption of the legitimacy of the child born to a married woman during
the continuance of the marriage, which presumption cannot be rebutted or
called into question by any person unless, the husband has brought and
suoceeded_ in an action for the disavowal of the child. In the face of
these provisions and the strength of the presumption they raise, it -
would, as it seems to me, be quite astonishing to find that there is

some other provision of the Greek Civil Code, v/hicl\ nermits the natural
father of a child in whose favour these provisions raise a presumption

of legitimacy, either by a unilateral act of recognition or othervlise,

to sidestep these provisions and, against the will of the husband ~~d

the wife, to brand the child as a bastard and to claim its custody. Yet
it is that very proposition which has been urged upon this court, and
which was successfully urged upon the court below.

In the court below, ,the learned judge framed and decided a prelimin<t~J
issue of law as to \·/hether the plaintiff was estopped f'r-om bringi:cg tha
suit by the provisions of article 1472 and/or article 1542 of the Gresk
Civil Code. So framed the issue appears to me to have begged the qU6etior.
and to have defeated itself. It was argued on behalf of the plai:ctiff
that~articles 1472 and 1542 were both rules of procedure, and therefora
inapplicable in the Sudan, since the procedure is governed by the lex

!2!!. Since an estoppel is a rule of evidence, and so part of the law

of procedure, this issue was bound to be answered in the negative. The
proper issue, if the plaint had not been dismissed.Under section 56 of

the Civil Justice Ordinance, was whether the plaintiff had a..'1.y right
recognised by Greek lav/ to claim either a declaration of his paternity

or the custody of the child. It was argued before us that article 1465,
which establishes the status of legitimacy of every child born in wedlock,
has no application where husband and wife have been separated for a period
which makes it impossible for the husband to be the father of the child,
and that therefore the provisions of section 9 of the Greek Civil Code,
which govern the case of children born out of wedlock, should apply. This
argument appears to me to be sheer nonsense. Not merely can no suppcrt
therefor be found in any possible interpretation of article 1465 of the

code, but it is quite inconsistent, first, with the nature of the presumption
established by section 9 of the Code, as a whole as abovementioned, and
second, with the express provisions of article 1471 of the code. If the
presumption of legitimacy does not apply in a case where there has been

such a separation, what possible reason can the Greek legislature hava

had to make express provision enabling. the husband to disavow the child

-in a case where he can prove such a separation? A similar, though not
,identical, presumption of legitimaqy exists in English law, and also in
French law, upon which the Greek Civil Code is to some extent founded,
but in neither case does the presumption fail to aris~ merely because
ot a de facto separation.

Then it is said that article 1472 is a mere rule of procedure,

that consequently any form of disavowal allowed by the law of the Sudan -
will suffice, and that any third party can bring any suit invoking the
illegitimacy of the child allowed by the law of t.he Sudan and' claiming
consequential relief. The first paragraph of article 1472, which restriqts
the form of d Lsavowa'L to an action in justice brought by the husband
against the guardian ad litem of the child, might perhaps be regarded

as a rule of procedure, though I think that the contrary ~ well be
argued. But, even if this first paragraph is a rul.e of procedure, it

does not necessarily help the plaintiff. There are no exclusive forms

or causes of action laid down by the law of the Sudan, and both the

custom referred to in section 5(a) of the Civil Justice Ordinance and

the la\'l referred to in section 9 include to that extent matters of
procedure as well as of substantive law. It is not necessary for me to
decide the point, and I do not purport to do so, but prima facie it

would appear to be open to the Sudan courts to entertain an action-'4l
disavowal brought by·a Greek husband, basing himself upon the provisions
oflarticle 1472 of the Greek Civil Code. Even if the Sudan Courts refused
to entertain such an action, and even if they could properly accept some-
thing less than an act ion in just i'ce as the equivalent of an act ion in
disavowal, upon which again I express no opinion, .1 have no doubt that
Exhibit D.l oannot possibly be regarded as being such an equivalent.

-The ge~eral purport of that letter is entirely inconsistent with any
intention of the appellant's husband to take any action in any wey

equivalent to the action in disavowal.

Moreover, even if the first paragraph of article 1472 enunciates a
rule of procedure only, the second paragraph, in mlf opinion, certainly
croes not. That paragraph seys in effect "No person, even if he has a
legal interest so to do, shall be hear~ 0; allowed to dispute the status
of legitimaqy oonferred by article 1465, unless and until' the husband
shall have mst ituted an act ion in disavowal". That is no mere rule of
prooedure, but it is at once a qualification and a reinforcement of the
status of legitimaqy conferred by article 1465, and 'as such it is a rule

of substantive -l~w. This- seoond paragraph of' artiole 1472 appears to me

to have two resUlts: first, it operates to establish a status of legitimacy,
which cannot; be disputed by any third party unless and until the husband

has suoceeded in his' action for disavowal, or there has,been some equivalent
prooeeding reo9gnised by the lex tori; , and seoond, it makeG it ab~~dantly
apparent that, unt il a. jud.~ent allowills: the disavowal has been givenor                                                                                                                                                                                                                                          

some suoh equivalent prooeeding has been taken, the child, is legitimate

and oannot be affected by any of the pronli!ion. of' section 9 of the code.
applioable to illegitimate children. It follows from this last oonsideration
that any purported volunte.ry or other reoognition of such a child by any

man other than the husband would be of no legal ef'f'eot whatsoever.

The learned counsel for the plaintiff based an ingenious argument
on artiole 1542 of the Greek Civil Code to show that section 9 of that
code applied to a Child born in wedlock, and that consequently, the
plaintiff having suffioiently reoognised'this child as ,his, he was,
entitled to. claim a deolaration of paternity and, under artiole 1662

of the Code, to claim custody. Article 1542 of the oode provides in
effeot that a married woman cannot bring the affiliation prooeedings
authorised in the case of an illegitimate child by ~.~ole 1540, unless
and until the child has been disavowed by the husband. It is true that
there is no similar express qualification on the right of the natural
father to reoognise his illegitimate child granted by artiole 1532 of

the o~e, but I do not think that it follows that the eXpression "illegitimate-
ohild" in article 1532 llIU.st therefore be understood as inoluding a child,

who is presumed to be leg;timate. The effect of a suooesstyr action in
disavow~l is to take away the status of legitimacy and ?~der the child
illegitimate. As such, the child, without further exp~ess provision of

law, woUld be subjeot to reoognition under artiole *532; and the mother

and child would each, be entitled to bring affiliation proceedings under
artiole 1540~ Artiole 1542 is therefore, strictly speaking, redundant

and deolaratory only. I have little doubt that the Greek legislature in
passing artilce 1542 desired to make it abundantly plain that no affili~tion
prooeedings would be permitted to prejudice the status of legitimac,y

conferred by artiole 1465, but that, ~c~ t~at status had been destroyed,

affiliation prooeedings were permissible. The reason why it did not

similarly and expressly qualify the right of recognition oonferred upon
the father of' an illegitimate child may. well have been that the very
unlikely oontingenc,y here in question did not ooaur to it. The whole

, argument on this ground appears to me to be directly oontrary to the

provisions of the second paragraph of article 1412 of the code, and quite
inconsistent vlith the nasure and eXtent of the status of legitimacy
established by the artibles which together make up section 9 of the code.

It seems to me that it· \·tould be quite wrong to va:ry the otherwise plain

and unambiguOus terms of those provisions and of article 1532 of the
code on an inference dravm indirectly from the declaratory terms of

art ic1e 1542.

Therefore, even if we apply' Greek Law VIi thout reference to cons ider-
ations of public policy, the result, as one would expect, is the same;
and, in my opinion this sui~ should in that event have been dismissed,

on the ground that it vias not founded upon any cause of action recognised
or enforceable by Greek law. In my opinion, therefore, the appeal
succeeds, and the declaration of paternity made by the court below

should be quashed. Nor do I think that the order for custody should
stand. If I am right in the views above-expressed, the child must be
considered as the legitimate ·issue of the marriage, ·~d the ordinary

law as to custody applies. I think therefore that the proper decree ~
is to dismiss the suit, and I think that a decree to that effect shoufd
be sub~tituted for that give!l by the court be10\i.

I wish to add one consideration, and that is that, even if I had
otherl"lise agreed in law with the judgment and decree appealed from, I
should have felt compelled to refuse to confirm it on the ground that
neither the defendant's husband nor- the guardian ad litem,:of the child

. were made parties to the suit. It seems to me that, in their absence
as parties, any decree as to the child's paternity liould be meaningless
and of no effect except, as forming some kind of est oppel in subsequent
proceedings between the defendant and. the plaintiff.

Evans I J.:I concur.

Platt I J t : I concur.

Appeal allowed.

Suit dismissed.