DNA EVIDENCE AND PARENTAGE DISPUTES IN PAKISTAN: RECONCILING SCIENTIFIC PROOF WITH ISLAMIC FAMILY LAW

Abstract

In this article, scientific advancement, Islamic law and Pakistani family law is discussed in relation to paternity issues especially on the question of acceptability and validity of any DNA evidence. It critically looks into the prevailing legal situation saga as the case in Pakistan that broadly excludes the final status of the DNA test in matters whereby paternity of such a child is questionable, particularly when the given child is born in marriage. The natural state of the law is associated with the Islamic principles, especially the ideology of walad lil-firab of assuming the legitimacy of a child born in a valid marriage and emphasizes the issue of paternity on the part of the husband.

This assumption, which is historically used to preserve family peace and social balance, is entrenched with the judicial thinking and system of law in Pakistan. But there is a serious threat to this established model presented by the emergence of DNA testing as a scientifically coherent and available method of quantifying biological relations. This essay explains that the factual truth and legal assumptions are increasingly mismatched because key evidence regarding cases involving mothers is not used or it is ignored. This conflict does not only weaken the authenticity of the court conclusions but also hurts the welfare and the rights of the children particularly, those cases to do with identity, inheritance and the parental obligations.

The wider Islamic jurisprudential tradition is also addressed in the study, where the classical beliefs were consolidated without the reference to the principles of scientific approach, including DNA testing. This process of adaptation and interpretation in Islamic law exists with itself, according to the beliefs of the ijtihad (independent reasoning), maṣlaḥa (public interest) and darūra (necessity) according to the analysis of the Jurisprudence literature and contemporary reformist knowledge. And the paper asserts the same on such basis. These values offer grounds on useful DNA evidence, which fails to shake the ethical premises of the Islamic law.

A significant element of comparative legal analysis constitutes a main part of the present paper and emphasizes the increment of the use of DNA testing in the systems of the family laws of other Muslim-majority states such as Tunisia, Egypt, and Malaysia without sacrificing the adherence to Islamic values. These are just some instances that show that it is possible to develop legal system in such a way that it does not interfere with religious belief by applying scientific truth. Further, the paper reviews the Pakistani case law touching on the case to demonstrate tendency of judicial equivocation and reticence, which is usually characterized by absence of clarity in law and procedural interpretation. International aspect of human rights has also been covered. Being a signatory to United Nations Convention on the Rights of the child (CRC), Pakistan owes a duty to safeguard the right to the identity of child such as the right to know and care about the parent. Refusing to apply DNA testing in maternity conflicts, in fact, may result in the infringement of the aforementioned rights, especially when it comes to selective inheritance, custody, or child care. The paper concludes that judicial and legislative renovations that acknowledge the written worth of DNA in paternity cases, without lack of character of Islamic law, should be given. Such reforms are aimed at properly striking the balance between religious orientation to truth and human rights and modern scientific evidence and truth in order to promote justice, consistency of laws and safeguard of helpless groups, foremost, children. Through this, Pakistan is making a step forward to a more fair and reasonable family law system apt to the demands of the current society.