Islam always protects lineages and avoids any confusion that may arise therefrom. It believes that a child who has no traceable father does not command respect and honor from eyes of the people and such a child will definitely be debased in the society and Allah has said it in the Glorious Quran that.
“And surely we have honored the children of Adam, and we carry them in the land and the sea, and we have given them of the good things, and we have made them to excel by an appropriate excellence over most of those whom we have created.” [1]

Thus, Islamic law attaches more value to the paternity of a child and how such could be rightly determined. It is apt to know that, before the paternity of a child could be determined under Islamic law, there must be a valid marriage which could be regarded as a foundation upon which family relation is built. Not only this, in order to save a child from suffering severe legal and social discriminations, a child is to be conceived in a licit sexual relationship (a valid marriage).

Paternity of a child can be established by different modes; one of which is marriage which this paper shall lay hand on. Islam preaches against illicit affairs between man and woman in order to establish a child’s legitimacy this is because; if a child born out of wedlock, such a child is regarded as illegitimate one.

The prophet Muhammad in explaining how important the paternity of a child is, said:

“A woman who ascribes a child’s legitimacy to someone who is not responsible for its conception has committed a grave offence thereby alienating herself from God and will be denied the bliss of eternity. Likewise a father who obscures his child’s legitimacy by denying his responsibility for its conception has offended God and inflicted on himself universal disgrace. “[2]–

Note that, this paper will briefly consider view of other schools of jurisprudence and mostly upholds Maliki School of jurisprudence which remains largely in vogue in the part of the country.

Definition of Paternity and modes of establishing it:

Paternity is a legal link between father and his child which is created by a valid marriage. This assists a child to safely trace his lineage to a particular father and establish his progeny.

Under the purview of Islamic law the paternity of a child can be confirmed by any of the three modes viz:[3]

(a) Marriage

(b) Acknowledgment

(c) Evidence

Islam considers marriage as a factor that gives legitimacy to a child and attributes him to a particular father. With presence of a valid marriage, it will be difficult under Islamic law for a man to deny the paternity of a child.

It is position of law that, a child born outside wedlock is legally regarded as illegitimate child and cannot be attributed or ascribed to the man who has illicit affairs with a woman, though the man will face the punishment (if such is proved) as it is prescribed by law. The status of a child therefore determined by a valid marriage, this is because Islam places child’s legitimacy in wedlock.

At this juncture, it is important to make it clear that, validity of marriage is not enough in determining paternity of a child, the child also needs to be born within the generally accepted period of gestation which this paper also aims to discuss.

Presumption of paternity under Islamic law:

In the event where paternity of a child is in controversy i. e.; a man denies paternity of a child and there is a valid marriage. Islamic law presumes paternity where:[4]

(a) Marriage contract exists between the spouses either de jure or de facto.

(b) There is actual consummation or possibility of consummation between the spouses without any hindrance. This includes seclusion between the spouses (Kha-lwah); sleeping together (mabeet); letting loose the curtain.

(c) The child is born between the minimum or maximum period of gestation.

(d) There is no legal denial, lian by the spouses.

In determining the generally acceptable period of gestation, the Islamic scholars based their views on the community reading of the following verses and deduced the minimum period of gestation therefrom. Allah says:

“And We have enjoined man on doing good to his parents; with trouble did his mother bear him and with trouble did she bring him forth ; and the bearing of him and the weaning of him was thirty months …”[5]

“And the mothers should suckle their children for two whole years for him who desires to make complete the time of suckling…” [6]

If the entire gestation and fostering period consist of thirty months and the fostering period is said to be of two years, the remaining months must be six as unanimously agreed by Islamic jurists.

The general view of majority of Islamic Jurists (Imams Maliki, Shafi and Bn Hanbal ) agree that a period of six months less five days after consummation of marriage, is regarded to be the minimum period of gestation. While Imam Hanifah, on the other hand considers the child legitimate six months after the conclusion of the marriage contract not necessarily consummation of the marriage.[7] There’s no unanimous view on the maximum period of gestation.

It can be deducted from the foregoing explanation that once there’s a valid marriage between the parties, the period of gestation which is six months and possible consummation without any hindrance should also be considered as condition. Thus, if a woman delivers a baby within the generally acceptable period, such a child will be affiliated to the husband. And on the other hand, where a child is born through a valid marriage, but under a period of six months or six months less five days, from the date of marriage, then the child cannot be attributed to that husband.

It is stated that:

“Under no circumstance shall pregnancy or child (of marriage) be denied where the wife, delivers complete baby within a period lesser than six months five or six days less, from the date, of the marriage contract. In that situation paternity can be denied without the necessity of having resource to Lian (mutual imprecation) as there exists a legal barrier (between the child and its suspected father)”[8].

Expert evidence in proof of paternity:

It is trite law that every claim must be proved and every proof requires evidence. The principle of law which is deduced from the Hadith of prophet is that ” the onus of proof lies on the claimant and Oath is on who denies the claim (the Defendant)”[9]–

In an event where a husband asserts that he never has sexual intercourse with his wife since the marriage was contracted and the wife has conceived. The question now is, whether the husband while providing his case can call an expert (a medical doctor) to give medical report in relation to pregnancy?

Before answering the above question, it is found necessary to know what’s referred to as expert evidence /opinion and also if Islamic law recognize it.

In Rabiu vs Amadu[10] Expert evidence/opinion was referred to as “(Alshahada tu bil Qafah). This is often the testimony or opinion which an expert gives in relation to some scientific, specialized technical or professional matters by experts. An expert is a person qualified to speak with some amount of authority by reason of their special training, skill, mastery or familiarity with subject matter in question that can be allowed to give an opinion. “

The legality of using expert evidence/opinion, Allah says:” … We granted inspiration: if ye realize this not, ask of those who have knowledge and wisdom.” [11]

Generally, there is no doubt that, Islamic law recognizes expert opinion. However, there are certain issues where expert opinion cannot be admitted in determination of such cases and one of these issues is to applying it to determine paternity of a child where there is a valid marriage.

Islamic law has put in place; a classical principle in determining the parentage of a child, this principle came from the saying of the prophet (S A W.)

“Al–walad Lil firash wa Lil haahiru Al–hajar” [12] meaning: the child is to be attributed to one on whose bed it is born, i.e.; husband and stoning for a fornicator.

In a situation where by, a modern technology i.e.; DNA test conflicts with the ruling of Islamic law, the ruling prevails. The modern technology will only be admitted in evidence where it doesn’t in conflict with the ruling of Islamic law. Even though there’s no unanimous view as to the admissibility of expert opinion on some issues, Imam Maliki is of the view that, in some cases, expert opinion can be relied on when such is necessary, but medical report in determining paternity is considered unreliable.

” The popular view is that the opinion of an expert cannot be relied upon to ascertain paternity in relation to children of free woman but (same can be relied upon) to establish paternity in case of children of a slave woman whose two masters had intercourse with her in one and the period of purity.”[13] –

Note that, in the olden days when there was legal ownership of slaves, if two or more masters own a slave woman and all of them have sexual intercourse with her, in this case, to determine the paternity of the child, the principle of “Al-walad Lil firash” will not apply, this is because; the slave woman is legally owned by two master not one. In such case therefore, expert opinion is admissible.

According to the statement of the Islamic fiqh council, paternity within a stable marriage needs no further verification by DNA testing or any other method but cases of disputed or contested paternity which includes missing children especially in the wake of accidents, war, disaster or natural catastrophes can be verified by DNA analysis[14]

Some Islamic researchers limit DNA testing to the scope of mere supporting evidence. Meanwhile, reliance on the result of DNA testing remains subject to the discretion of judges and their examination of the facts of particular cases. Family court in Muslim world mostly follows the established consensus on the methods of establishing and negating paternity in Islamic law- [15]

Islam doesn’t in anyway encourage a man to deny the paternity of a child and run away from his responsibility such as maintenance and custody of a child. When there’s a valid marriage between husband and wife and the woman delivers complete baby within a period of gestation as it was explained above, it would be very difficult for the husband to disown the child except if there’s proof that he is inability to cohabit with the wife.

In case of Rabiu vs Amadu (supra)[16] the court of Appeal aptly put the issue and concluded the records thus:

“It is fool hardy and I think immoral, illegal, despicable, shameful incredible under Shariah dispensation for a person (husband) who has contracted a marriage between himself and woman (wife) and she, having spent the required minimum period of gestation in his wedlock and without him proving his inability to cohabit with her or subscribes to lian procedures will now turn round to disown the pregnancy conceived or child born within that period of time. Shariah will certainly not allow that kind of cheap scape – goatism or abdication of responsibility…”

It is my view that, the conclusive presumption can be considered and firmly go with the principle of “Al-walad Lil firash”. Where there is evidence that there’s a valid marriage between the parties, husband lives with the wife for minimum period of gestation, and no direct evidence to prove that the husband cannot cohabit with her wife, and the husband refuses to resort to Lian. One can make an inference that the husband is the father of the child. “O our father we went racing with one another and left Yoosuf with our things and the Wolf devoured him, but thou will never believe us even though we tell the truth.”[17]

From the above verse, it clear from story of Yoosuf when his brothers claimed that the Wolf has eaten Yoosuf, even though they came with the shirt stained with the blood. The fact that, the shirt was not in any place torn by Wolf is enough without conducting a test to determine whether the blood is animal or human blood. A judge can safely reach a conclusion in absence of any evidence and solely relies on the principle of “Al-walad Lil firash” and determine the paternity of a child.

In conclusion, paternity of a child is very important in Islam. Allah frowns at whosoever denies paternity of a child and he neither provides the fact that he is not responsible for a child nor call required witnesses to establish that his wife has sexual intercourse with another man. The last hope for a man who denies paternity of a child is to subscribe to the oath of Lian (Mutual imprecation or cursing) as provided in Quran 24 verse 6.

In the name of denying paternity of a child, one should remember that Allah’s wrath on whosoever falsely denies the paternity of a child and what may be the consequences. Finally, the opinion of physiognomist is based on effort (ijtihaad) and cannot be solely relied on in determining paternity of a child Islamic law while there’s laid down principle to determine such.

By: Y. A, Usman Esq (Ar-rohees), Email: rohees9090@gmail.com, Phone: 07033589425

End Notes

[1] Quran: 17 Verse: 70

2 Jalaludeen bn Abdulrahman Sayutiy- Al-jamihu As-sagir Darul-kutub Al-Ilmiyah (Beirut 2014) page 2942

3 it was the judgment of Court of Appeal in Kwait

4 Muhammad Bakr Ismaheel -Al-Qawaahid Al-fiqhiyyah,- Daru Almanar (1997) pg 344

5 Quran: 46 Verse: 15

6 Quran: 1 Verse: 233

7 Ibn Rushd’s Bidaayat Al-mujtahid Wa’ Nihayat Al-muqtasid, Daru Al-hadith, (Cairo 2004) vol. 2, page 352

8 Saliu Abdulsemiu Al-ãbi Al-azhar Jawahirul Iklil. (Beirut 1997) P.381. See also Mukhtasar Khalil, vol. 4 page 149.

9 Muhammad Bakri Ismaheel,Op Cit, P. 172.

10 (2012)1 S.C. (Pt. II) pg.16- 38

11 Quran: 16 Verse: 43.

12 Muhammad Bakr Ismaheel,Op. Cit, p. 344.

13 Burhanuddin Ibn Farhoun Al-Maliki Tabsiratul hukkam Daru Al-kutub Al-ilmiyah (Beirut 2003) vol. 2, page 100.

14 Ron Shaham the Expert Witness in Islamic Court: Medicine and Crafts in Service of law 2010 <http://www.researchgate.net/publication>(20th December 2019 3:14pm)

15 (Ayman Shabana- Paternity between Law and Biology: the Reconstruction of the Islamic law of paternity in the Wake of DNA testing, 2012) <http://www.academia.edu>(20th December 2019 10:12am)

16 2012

17 Quran: 12 verse: 17-18