Justice Véronique Kwok Yin Siong Yen on Wednesday ordered the exhumation of the remains of a man buried in 1999 as part of a paternity case that has lasted more than 10 years. The plaintiff claimed to be the deceased’s natural child. She obtained a favourable judgment from the Supreme Court in 2014. (Then) Justice Nirmala Devat concluded that she had demonstrated that she was indeed the “natural daughter” of the deceased.
A first appeal by the deceased’s heirs was rejected. They turned to the Privy Council which referred the case back to the Supreme Court of Mauritius in 2020 while stressing that paternity must be established on the basis of both sociological and scientific evidence. A new trial began in 2022. Several issues were raised.
“Does the first sentence of Section 8(a) of the DNA Identification Act 2009 prohibit the judge from ordering a forensic analysis for the purpose of ascertaining filiation where one of the relevant parties is a dead person as submitted by Mr. Ithier, SC?” pointed out Justice Kwok. For her, “it is clear from the above case that a party’s consent to a DNA test is not required and that a judge may order an unwilling party to provide a sample of his DNA for paternity testing.”
But she asked in the judgment, should the approach be different where a party has passed away and has not consented to a paternity test during his lifetime? After analysing the law on DNA samples in France, she concluded that “in Mauritius, a judge may order a person who is still alive to provide a DNA sample for the purpose of a forensic analysis to establish paternity and this is not subject to the consent of that person.”
She added: “As it is not necessary for a person’s consent to be obtained for a judge to order a DNA test, I find that it is thus immaterial whether late (name of the person) consented or not during his lifetime to provide his DNA sample for the purpose of establishing paternity.”
She ordered the exhumation of the remains of the deceased and the forensic analysis of a DNA sample to be taken from the remains by the Forensic Science Laboratory (FSL). This will be compared with the DNA sample to be provided by the plaintiff for the purpose of establishing paternity.
The matter will be mentioned before Justice Véronique Kwok Yin Siong Yen on 22 March 2024 so that the parties can take a stand in the light of the report to be submitted by the FSL.
