Conflict of Laws-Maintenance of illegitimate children-I jaw applicable-Per-

                 sonal law of lex fori                            

Maintenance-Illegitimate children-Duty to provide support
Reception~Paternity actions-English Bastardy Acts

Appellant, a Greek national, cohabited with an Abyssinian woman for
several years and three children resulted therefrom. On his desertion, the
respondent instituted action for the maintenance of the' children and the
district judge decreed in her favour. Appellant appealed ~on ~ground
that a Sudan court has no jurisdiction, on matters affecting his personal
status and assuming it has, Greek law prohibits an action to prove the
paternity of an illegitimate child.

Held: (i) that the matter is governed by the lex fori.·Court: R. H. Dun C.J.

(ii) that in the absence of, a local ordinance, principles of jt_tiee,
equity and good conscience require the recognition of paternity actiojs.

( iii) that, following English law, it is no defence that the lex ~rl of the' parties prohibits such action. English Bastardy Acts.

Appeal
December 10, 1918, Dun C.J.: In this case an Abyssi', • an
woman sues a Greek man for maintenance of the children she .has
borne him.

It is admitted that from 1907 to 1912 the respondent was the
mistress of. the appellant; in 1912 the appellant went away to perfor •.
his military service and returned either late the same year or early
next year: they cohabited again for six months and then the relation
ceased.

The learned judge has found, I think rightly on the evidence
before him, that the three children were in fact begotten by the
appellant and borne by the respondent and has awarded a sum of
fE.2 for each of the two younger children as maintenance for the
month of May 1918. Against that decision the appellant has appealed.

For the appeal it is argued that the courts of the Sudan have no
jurisdiction as the question is one affecting' the personal status of the
appellant. The appellant is a Greek and it is said that by Greek law
such questions can only be determined by a Greek court according to
Greek law.

It is also stated that Greek law, like the French law, prohibits
any action to prove the paternity of an illegitimate child. I do not
think this is a sufficient reason, first because to allow it would generally
mean an absolute denial of any recourse to a court of justice in
such cases, the nearest Greek court being in Cairo and the class of
respondent much too poor to seek a remedy so far away, but chiefly
because I am unable to see how the decree in this case affects the
respondent's status.

It appears from Phillimore's International Law Vol. IV, sec-.
tion DXXXIlIl that the French courts would not permit such an

1 The actual text of the section could not be traced, nor could the relevant
edition of the book referred to. action even in the case 9f two foreigners of the same nation whose

. national law permitted such. an action, because it is contrary to the
law the French eeurts. administer, and in England it would be no
defence to an application under the Bastardy Acts that the national
law of the parties prohibited such an action, and I therefore conclude
that such matters are not governed by the personal law of the parties;
but by the local law or lex fori.

It remains therefore to consider whether the law of the Sudan
allows such an application., There is no ordinance or proclamation
dealing with the case, and it must therefore be decided on the
principles of justice, equity and good conscience.

Against the decree we have on the one side the Roman civil law
and practically the whole of modem European law and the Moslem
law: in favour we find on the other side the Roman common law,
the Dutch law, English and Scottish law, the law of the most states
of the U.S.A. and the greater part of the British Empire including some
parts which were once French, Swiss law and the law of certain
Hindu castes. There is therefore not any general consensus of opinion
amongst the legislators of the world in favour of one view rather
than the other. . I know of no other previous decisions in the court's
of this country to guide me.

I feel impelled by two considerations to decide in favour of the
decree: one is that it seems to me to be 'contrary to justice that a
man may take a woman as his mistress and when he gets tired of her
cast her and the children she has borne him adrift. The other is
that a principle which is accepted over the greater part of the British-
Empire with its very varying conditions of life seems to me to be a
suitable one to follow in the Sudan.

I wish to add a word about Moslem law.

The facilities which Moslems enjoy as regards marriage and
divorce, and the facilities which Moslem law contemplates as regards
concubinage with slaves, makes cases such as these so rare as to be
negligible; the free concubine or mistress as distinguished from the
slave concubine on the one hand or the professional prostitute on the
other hand may almost be said to be non-existent among Moslems.

As regards the question of amount I am not inclined to falter
the learned judge's order, but if at any future time new circum-
stances arise, for example a substantial reduction in the cost on
living, the appellant )Vill not be precluded from contending that. the
sum allowed by tft#! district judge is too high.