DNA Analysis and Sharee’ah
Fatwa No: 82709

Question

I am a lawyer in Singapore. I practice Shariah Law. At present I have a Shariah case. My client's wife has petitioned for divorce. My client consents. There is a 1-year-old son. My client suspects that his wife had relations with another man and as a result bore the son. My client wants to do a DNA test to confirm. The lawyer for the wife objected to the Shariah Court saying that the principle 'the son belongs to the bed' is a irrebuttable presumption. The lawyer also adds the Sunni jurists are unanimous the if the gestation period of the child is more than 6 months from the date of the marriage, it is a irrebutable presumption that the child is my client's. I went to a site (al-islam.org/laws/contemporary/muamalat4) where there is a site Fatwa that whoever arrives at a knowledge through blood analysis or otherwise that goes contrary to the above principle should act in accordance with his knowledge. My client and his wife are Sunni. The Court has adjourned to 01/04/01 for the lawyers to submit further because it is a novel point. Please reply to me especially whether there is any Fatwa on the Sunni point. Please e-mail to me the specific details so that I can present to the Shariah Court here. Insha-allah, I hope to hear from you shortly.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

In Islamic Sharee’ah, people are, by nature, chaste unless proven otherwise. This is why Islam protects the honor of the Muslim man and the Muslim woman by forbidding false accusations (defamation and slander) and making it a dissolute act that deserves a Hadd (a corporal punishment prescribed by Islamic Law) if the person who does it cannot present enough evidence to prove his accusation. Islam also accepts the slightest probability as evidence to trace the child back to any man who could be his father; a man who is married to the mother of the child or who had sex with her as his woman slave. Even if the married woman confesses to having had children from Zina, this does not suffice to annul their lineage to their father; i.e., the one who is known to have been her husband during the period in which she conceived those children, as long as this man has not himself made Li’aan (launching a charge against his wife and swearing four times by Allah to the fact – that she was unchaste – and a fifth time invoking curse on himself if he lies). This is from the sound Hadeeth: “The child is for the owner of the bed and the stoning is for the adulterer.” [Al-Bukhari, Muslim and others]

As for this husband, if he is certain that this woman is an adulterer or if he believes very strongly that this woman was a prostitute or a whore and that the child traced back to him is not his child, and if he accused this woman publicly of Zina, he has then the right to use all possible presumptions and pieces of evidence to prove that the son is not his. DNA test is one of the possible pieces of evidence but it is not the most important one. It is not permissible to conduct DNA testing to determine paternity solely on the basis of suspicious of Zina.

The following are some important points to be considered:

The person requiring a DNA test to prove paternity is an indication of accusing his wife of Zina if the test is conducted during circumstances, such as after having doubts or conflicts with one’s wife, etc. So, one should not demand this test unless he is sure about the ill conduct of his wife and he has strong indications to prove it. Also, the DNA test is considered a supporting evidence for his claim. So, it should be carried out only if there are other presumptions to back the claim. So, DNA is not the first and most important evidence for her Zina.

Second, the results of this test should be true evidence, authentic and reliable according to medical authorities in the above or similar cases. Only the specialists in this field should make a legal decision in this matter.

Third, there should not be any fraud, or interference in conducting the test, or in the results of its findings.

Fourth, the test should be performed before Li’aan (oath of condemnation) since the Li’aan causes complete separation between a man and his wife, and a denial of the child to be traced back to him. In fact, this man cannot deny his fatherhood to this child except through Li’aan.

Allah Says (what means): {And for those who accuse their wives, but have no witnesses except themselves, let the testimony of one of them be four testimonies (i.e. testifies four times) by Allah that he is one of those who speak the truth. And the fifth (testimony) (should be) the invoking of the Curse of Allah on him if he be of those who tell a lie (against her). But it shall avert the punishment (of stoning to death) from her, if she bears witness four times by Allah, that he (her husband) is telling a lie. And the fifth (testimony) should be that the Wrath of Allah be upon her if he (her husband) speaks the truth.} [Quran 24:6-9]

So, the child’s lineage to the father cannot be denied except through Li’aan as narrated in the Hadeeth reported by Abu Daawood, An-Nasai, Ibn Maajah and Ibn Hibbaan (the latter said it was a sound Hadeeth): “Any woman who brings into a family a person (child) who is not one of them (by legal lineage), she shall have no relation left with Allah…

This Hadeeth states the woman but in fact the verdict is true for the man as well. So, if the man is certain of the prostitution of this woman and that she has traced back to him a child who is not his and he does not refute this, he is considered as having traced to himself a person who is not from his lineage and then he deserves the same punishment as the woman stated in the Hadeeth. If this man does not refute his fatherhood of this child, then this child would inherit from him and get equal rights as his other legal children.

For more benefit, so please refer to Fatwa 88652.

Allah knows best.

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