Cumhuriyet İlahiyat Dergisi

Öz

Abstract: There are two ways to deny the lineage of a child who was born in
marriage contract in classical Islamic legal doctrine. The first is to sue in
court by husband accusing his wife by adultery. In this case, both the wife and
husband swear properly (liʿān / mulāʿana)
in the court opened and as a result of the court, the child’s lineage falls
from husband. The second is that there are certain special circumstances that
are inevitable for the child to be born in marriage from husband in terms of
reason and science/ medical point. In such a case, the husband has the right to
sue the denial of lineage without the need for a liʿān/mulāʿana application. Nowadays (recently), with the
development of science and technology DNA fingerprinting is used as a means of
proof in proving the lineage and
denying the lineage. Contemporary Islamic law researchers have stood on
the issue of the determination or denial of lineage with DNA fingerprint test.
This study will focus only on “Denial
of Lineage/Paternity by DNA Fingerprint Test in Islamic (Family) Law”.

Summary:
In Islamic Law has given great importance to determine a lineage truthfuly, and the right for husband to refuse
the lineage of a child, who was born in marriage contract as long as the child
was from somebody else.

There are
two ways to deny the lineage of a child who was born in marriage contract in
classical Islamic legal doctrine. The first way is the method known/called as
liʿān/mulāʿana. As a legal term the liʿān/mulāʿana is both the wife’s and
husband’s swearing in the court opened for denial of lineage (liʿān) after the
husband’s blaming his wife for adultry (qazif).

The second
way which makes the child's paternity impossible to husband are conditions such
as knowing with certainty that the woman got pregnant from someone else before
mariage contract or her giving birth after marriage contract before six months
completed; realizing that the husband could not have (was not able to have) a
child because of his biological and/or physiological defects (disabilities)
and/or the sexual intercourse between the husband and wife is not possible. In
such circumstances, the right to refuse the lineage of this child who was born
in marriage contract has been legitimated to the husband without liʿān.

Nowadays
(recently), with the development of science and technology, DNA fingerprinting
is used as a proof in denial or approval of the lineage cases.

DNA
fingerprint is defined as the genetic code transmitting from parents to
children through inheritance, that signifies each individual’s particular
biological identity and that is possible to be known within the framework of
specific scientific guidelines.

There are
differences as well as similarities in the physiological structure/creation
(phenotype) of each person. In the same way, each person's biological and
genetic structure/characteristics (genotype) are similar to each other but
there are some differences between them. As a matter of fact, it has been
scientifically proven that people who look physiologically very similar are
different from other people in terms of biological/genetic (genotype)
characteristics such as "fingerprints, phonemes, scent marks and DNA
fingerprints".

On the
other hand, the determination or denial of lineage is closely related to many
legal issues as inheritance, custody, marriage (marriage prohibition), hıdane
(right of protection and training), right of alimony, āqila, witness, etc.

That is
why, in Islamic law, in the case of a precise information, evidence or a strong
possibility about the child born in a true marriage is adulterated or belongs
to the pre-wedding/before the wedding, the husband has been given the right to
refuse the child's lineage/surname by resorting to the liʿān or without
resorting to the liʿān.

As
understood from the verses (al-Nur 24/6-9) concerning the subject, the practice
of liʿān has been made legitimate for the husband who cannot prove an
adulterous crime to his wife with four witnesses. Hence, if the husband accuses
his wife of adultery and proves it with four witnesses or the wife confesses
adultery, there is no need for liʿān application and a penalty for adultery
(hadd) is imposed on a woman because the wife’s adultery is certain with the
witnesses and the application of liʿān is not needed.

In that
case, just as it is in the evidence of adultery, also on the issue of lineage’s
denial, the husband should have the right to refuse the child's lineage when he
claims that he did not impregnate his wife or that the child born in their
marriage does not belong to him and he proves it by DNA fingerprint test
without the need for liʿān application. Accordingly, if the DNA fingerprint
test reveals that the child is from the husband, a slander (qazif) penalty is
applied to the husband because he blamed his wife for adultery (qazif) and
could not prove it. However, if the DNA fingerprint test reveals that the child
is from someone else but the child's lineage cannot be annexed to husband,
adultery is not applied to the woman because of the possibility that the
pregnancy may be by way of rape (enforcement to sexual intercourse) or as a
result of suspected sexual intercourse.

On the
other hand, the application of liʿān related with the denial of lineage is an
exceptional rule. The main issue is to prove with four witnesses that the child
is the result of adultery. Therefore, religiously, the liʿān is not an
application that must be done with worship consciousness and that makes one a
sinner when abandoned. According to this, to accept the DNA fingerprint test as
evidence is not to cancel the liʿān application, on the contrary, it is to
abandon it because it does not need the liʿān application. Therefore, the
application of the liʿān will continue to be in effect where there is no
opportunity to apply DNA fingerprint testing.

As a
result, on “Denial of The Lineage/Paternity by DNA Fingerprint Test in Islamic
Family Law” it is possible to
say:

The Qur'an
and the Sunnah, the main sources of Islam, encourage and require wisdom and
practice in accordance with it. Therefore, there should not be any objection to
the use of DNA fingerprint testing, which is a scientific proof, in the case of
lineage denial as well as lineage approval.

As a matter
of fact, the general rule expressed by Shafiî jurist el-Maverdî (d. 450/1058)
about matter of lineage’s denial “If the scientific facts indicate that the
child is not from the husband, the child's lineage is rejected without the need
for the liʿān application” (Māverdī, āl-Hâvi al-kabīr, 9: 159), shows that the
means of modern/scientific proof such as DNA fingerprint testing will be
accepted in the matter of lineage’s denial in Islamic law.

Therefore,
in accordance with the provision of the verse: “Call them (your adopted
children) with the name of their fathers. This is more righteous and just in
the sight of Allah” (al-Ahzab 33/5), in order to ensure the identification of
lineage truthfuly, the husband must have the right to refuse the lineage
of a child who is proven, by a DNA fingerprint test, not to belong to him
without the need for a liʿān application.