DNA Testing in a Paternity Dispute Without Consent,
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| DNA cannot without consent of the parties |
Yes, both parties were claiming paternity of the minor Umme Mabad alias Maryam. This paternity dispute led to the legal proceedings where the question of whether to conduct a DNA test to resolve the paternity issue was raised. The Senior Civil Judge (Family Division) in Hafizabad initially ordered the DNA analysis to settle the conflicting claims about the minor's paternity. This order was subsequently challenged by the petitioners in the Lahore High Court. The petitioners argued that DNA testing for paternity should require the consent of the parties involved, which became the central issue in the writ petition.
In the context of legal documents, the term "prayer" refers to the specific request or relief sought by the petitioners in their writ petition. In Writ Petition No. 75322 of 2022, the prayer of the petitioners was to challenge and seek the annulment of the order dated 17.10.2022, which directed the DNA analysis of minor Umme Mabad alias Maryam to settle the paternity dispute.
Specifically, the petitioners prayed for the following:
1. **Setting Aside the DNA Testing Order**:
- The petitioners requested the court to nullify the order passed by the Senior Civil Judge (Family Division), Hafizabad, which mandated the DNA analysis of the minor without considering the necessity of consent.
2. **Recognition of Consent Requirement**:
- They sought a declaration that DNA testing for paternity should not be conducted without the consent of the parties involved, as it infringes on their fundamental rights to privacy and liberty.
3. **Alternative Resolution Methods**:
- The petitioners likely asked the court to direct the trial court to decide the paternity issue based on the existing evidence, including oral and documentary evidence, without compelling them to undergo DNA testing.
These prayers aimed to protect the petitioners' rights and to ensure that any determination of paternity would respect their consent and be based on comprehensive evidence, adhering to both legal and Islamic jurisprudence principles.
2022 کی رٹ پٹیشن نمبر 75322 میں، کنیز فاطمہ اور دیگر نے ایک حکم کو چیلنج کیا جس میں ایک نابالغ پر زچگی کے تنازعہ کو حل کرنے کے لیے ڈی این اے ٹیسٹ کو لازمی قرار دیا گیا تھا، یہ دلیل دیتے ہوئے کہ اس طرح کے ٹیسٹ کے لیے رضامندی کی ضرورت ہوتی ہے۔ لاہور ہائی کورٹ نے حکم نامے کو ایک طرف رکھتے ہوئے اس بات پر زور دیا کہ ولدیت کے لیے ڈی این اے ٹیسٹ کے لیے فریقین کی رضامندی ہونی چاہیے، اور ٹرائل کورٹ کو ہدایت کی کہ اگر رضامندی فراہم نہ کی گئی تو موجودہ شواہد کی بنیاد پر فیصلہ کرے۔
Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
Case No.
Writ Petition No.75322 of 2022
Kaneez Fatima, etc
Versus
Senior Civil Judge etc.
Sr. No. of
order/
Proceedings
Date of
order/
Proceedings
Order with signatures of Judge, and that of parties or counsel,
where necessary.
15.05.2024 Mr. Babar Bilal Awan, Advocate for the petitioners.
Mr. Muhammad Jawad Yaqoob, Additional Advocate
General with Majeed, SI.
Mr.
Fahad Ahmad Siddique, Advocate for
respondents No.02 & 03.
Through this writ petition, the petitioners have
assailed the order dated 17.10.2022 passed by learned
Senior Civil Judge (Family Division), Hafizabad whereby the
learned Judge has directed DNA analysis of minor Umme
Mabad alias Maryam in order to settle the claim between
two parties about the paternity of such minor and that order
was result of a direction by this Court passed in Writ
Petition No.16871-H of 2022 on 21.03.2022.
2.
Learned counsel for the petitioners contends that
DNA examination for the purpose of paternity is always
subject to consent of the parties and the learned Judge
should have attended to this aspect of the case because
direction of this Court for DNA examination cannot ipso
facto override the legal position. In order to fortify his
arguments, learned counsel for the petitioners has referred
case reported as “MUHAMMAD NAWAZ versus ADDITIONAL
DISTRICT AND SESSIONS JUDGE and others” (PLD 2023
Supreme Court 461).
3.
On the other hand, learned counsel for respondents
No.02 & 03 initially argued that the judgment relied upon by
Writ Petition No.75322 of 2022
2
learned counsel for the petitioners is on different legal
premise whereas in the present situation, when two parties
are claiming paternity over a minor, the DNA would be a
best course to ascertain such fact. However, later conceded
that evidence of the parties before the lower Court is
almost complete, therefore, an appropriate direction in this
regard be passed to the learned trial Court.
4.
Arguments heard. Record perused.
5.
Determination of paternity of a minor has been dilated
upon in different cases by this Court and the Supreme Court
of Pakistan as well. The pro and contra judgments are
necessary to be made part of this order for guidelines to the
trial Court to pass an appropriate order. Case reported as
“ABDUL LATIF Versus ADDITIONAL DISTRICT JUDGE, KASUR
and 4 others” (2016 CLC 1553), focused upon the necessity of
DNA test as under;
“………it is not a case of legitimacy of the petitioner but it is
claimed that he was born out of the wedlock of some other
known spouses and he was adopted son of the parents of
respondents Nos. 3 and 4, who at that time were issueless.
Here the objects are known and in case of any ambiguity or
doubt in the veracity of the report, the parties will be at
liberty to file objections and the same will be resolved
keeping in view the direct evidence likely to be produced by
the parties.”
6. The judgments which prohibit conducting DNA without
the consent of parties are referred below with reasoning.
The Supreme Court of Pakistan in a recent case reported as
“MUHAMMAD NAWAZ versus ADDITIONAL DISTRICT AND
SESSIONS JUDGE and others” (PLD 2023 Supreme Court
461) observed as under:
“We find that both the revisional court and the High Court have
failed to consider that the conducting of the DNA test of a
person, without his consent, infringes his fundamental rights to
liberty and privacy guaranteed by Articles 9 and 14 of the
Constitution of the Islamic Republic of Pakistan”
A court order for the DNA test of two persons as a means of
identifying their genetic relationships interferes with their right
Writ Petition No.75322 of 2022
3
to privacy and liberty. This test can be ordered only either with
the consent of the persons concerned or without their consent
if permissible under a law. We are aware of certain provisions
of criminal law which permit the DNA test of an accused
person without his consent, but no civil law has been brought
to our notice which allows this test in civil cases without the
consent of the person concerned.
It may be pertinent to mention here that in a civil case, if the
person upon whom the onus to prove his genetic relationship
with another person lies, does not give consent for his DNA
test, and thus withholds such evidence, the court may draw an
adverse presumption against the claim of such person and
presume that such evidence, if produced, would be
unfavourable to him, as per Article 129(g) of the Qanun-eShahadat 1984.
In another case reported as “Mst. LAILA QAYYUM Versus
FAWAD QAYYUM and others” (PLD 2019 Supreme Court
449), The Supreme Court of Pakistan says as under:
“Learned Mr. Awan is also right in referring to the case of
Salman Akram Raja wherein it was held that a free lady
cannot be compelled to give a sample for DNA testing as it
would violate her liberty. If a sample is forcibly taken from
Laila to determine her paternity it would violate her liberty,
dignity and privacy which Article 14 of the Constitution of the
Islamic Republic of Pakistan ("the Constitution") guarantees
to a free person”
In case reported as “SALMAN AKRAM RAJA and another
Versus GOVERNMENT OF PUNJAB through Chief Secretary,
and others” (2013 SCMR 203), the observations of Supreme
Court of Pakistan were to the following effect;
“It is well settled that the consent of victim is necessary and
she/he cannot be subjected to DNA or other medical test
forcibly for prosecution purposes because that would amount
to infringement of personal liberty of such persons”
We are in agreement with the learned counsel to the extent
that DNA samples etc. should be preserved for make use of it
at the appropriate stage whenever is required. However, the
legislature is free to regularize the procedure by making
appropriate legislation in this behalf”
Same was the view of this Court in case reported as “Mst.
SAFIA BIBI and another Versus MUHAMMAD AKBAR and
others” (PLD 2018 Lahore 758) that:
Writ Petition No.75322 of 2022
4
“If a person does not give consent for such test, he/she cannot
be compelled for the test. It amounts to interference with
personal liberty of a person. It was finally concluded that the
Court has power to order for DNA Test or any blood test in
order to ascertain the truthfulness of allegations but such
order must be passed with the consent of a party, the order
cannot be made in routine. Compelling a person to undergo a
DNA Test can have serious consequences. It is the duty of a
court to safeguard and protect personal liberty of every citizen”
In case reported as “Mst. RUBINA KAUSAR Versus
ADDITIONAL SESSIONS JUDGE and others” (PLD 2017
Lahore 604) this Court has held that:
“The Indian Supreme Court in the case of Goutam Kundu v. The
State of W.B. (AIR 1993 SC 2295) held that before the blood test
of a person is ordered, his consent is required, as, that test is
concerned with his personal liberty and cannot be carried out
without his consent. The Court went to an extent to order that
even if there is legislation which can compel the blood test,
then also, unless and until there is consent of the concerned
person, he cannot be compelled to go to the hospital for giving
blood test.”
In the United States, paternity testing is fully legal, and fathers
may test their children without the consent or knowledge of the
mother. Paternity testing take-home kits are readily available
for purchase, though their results are not admissible in court,
and are for personal knowledge only. Only a court-ordered
paternity test may be used as evidence in court proceedings.
Thus, for what has been discussed above, it is not safe to
resort to DNA testing in Civil matters of inheritance as a matter
of routine, the paternity issue could be proved by oral and
documentary evidence already recorded by the trial Court.”
Case reported as “NASEER AHMED Versus Mst. AZRAH and
another” (PLD 2010 Karachi 61) says that:
“As far as, application for DNA test is concerned, since the
question whether the applicant before the trial Court is father
of the child or not has to be decided on the basis of evidence
available, it is obviously for the Family Court to decide whether
it needs DNA tests or not. Obviously costs of such DNA test
should be borne by the person who made the application for
such test”
7. An Article on “Islamic Law of Paternity and DNA
Evidence” by Ayman Shabana, posted on June 28, 2021
throws light on the issue that for paternity verification, two
main approaches can be identified for the incorporation of
DNA evidence: ‘comprehensive and limited’. While the
Writ Petition No.75322 of 2022
5
former seeks to recognize DNA evidence as a new and
almost an independent method, which can ensure the
achievement of the sharīʿa objectives in the domain of
paternity and lineage, the latter insists that DNA evidence
should be treated as a type of circumstantial evidence,
which can be compared to the classical method of qiyāfah.
While the first approach has been pursued by some jurists,
the second approach has been adopted by the
overwhelming majority of contemporary Muslim scholars,
as reflected in both individual as well as
institutional fatwās, statements, resolutions, and
recommendations. The information in this respect is as
follows;
This is best illustrated by the resolution of the Islamic Fiqh
Council of the Muslim World League, which was issued in its
16th session, held in Mecca in January 2002. The resolution
acknowledges DNA testing as an effective scientific method,
which can yield certain or near certain results. However,
while the resolution indicates that it should be considered
more effective than the traditional method of physiognomy,
it specifies certain stipulations that should govern its
implementation. For example, according to the resolution,
DNA testing for paternity verification should be used to
support sharīʿa-based methods but not to verify already
existing and established paternity relationships. Moreover,
it should be used mainly in contested and disputed cases. [1]1
Some of the jurists are of the view that DNA testing can
provide almost certain results while other see its results as
probabilistic, therefore such testing is always subject to
statutory regulations. Even otherwise DNA results are only
corroborative evidence which are to be accepted or rejected
in the light of evidence of the parties and in case of dispute
the expert can also be summoned to justify his opinion.
8.
After attending the above cases, it is clarified that
consent of the parties is essential to decide claim of the
[1] https://islamiclaw.blog/2021/06/28/islamic-law-of-paternity-and-dna-evidence/
Writ Petition No.75322 of 2022
6
parties with respect to paternity of the child. If the parties
do not give consent for such DNA examination, then learned
trial Court can draw adverse inference as per Article 129 (g)
of Qanun-e-Shahadat Order, 1984 and shall proceed to
decide the question of paternity on the basis of evidence
produced by the parties. In this respect, Court can also take
help from Quranic verses and Hadith of Holy Prophet. One
of the examples is quoted in a judgment of Federal Shariat
Court titled “Mst. RAJO MAI versus THE STATE” (1992 P Cr.LJ
1011) wherein it was held that for tracing the origin of the
child the male member of the affair could be traced out by
evidence particularly by ascertaining the origin and blood
grouping of the child, origin of child could also be
ascertained by comparing features and limbs of child with
alleged claimant.
9. The above referred article on “Islamic Law of Paternity
and DNA Evidence” by Ayman Shabana also throws light on
such method. According to the tradition, it is a form of
circumstantial evidence which is called physiognomy
(qiyāfah), and was quite popular in the pre-Islamic Arabian
culture. The word is derived from the Arabic root (qāfa),
which stands for the act of following or tracing. It conveys
the ability to follow marks on the ground, mainly in the
desert. It also denotes the ability to examine resemblance in
bodily and physical features for the purpose of confirming
family relationships, especially in paternity disputes. Most
jurists, justify the possibility of resort to physiognomy in
contested cases by arguing that verification of lineage
relationships is an important personal and social
need. Sharīʿa seeks to provide means to enable
establishment of paternity whenever possible even on the
basis of probable evidence
Writ Petition No.75322 of 2022
7
10.
The net result of above discussion is that writ
petition is allowed and consequently order dated 17.10.2022,
impugned herein is set aside. Learned trial court can resort
to DNA testing only with the consent of the parties or
otherwise competent to decide the matter on the basis of
evidence produced by the parties including resort to
physiognomy (qiyāfah) as highlighted above.
Muhammad Amjad Rafiq
Judge
Approved for reporting:
Judge
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