By Mohammed Ibrahim Abdul

Introduction

Paternity is the state or fact of being the father of a particular child.

DNA is a blood test that shows the relationship between the father and a child. According to scientists, if DNA report of a father is not the same as the one of his child, the child is not his blood.

It presupposes that the child has parents from the valid marriage, the paternity of a child is quite important under Islamic law, a child without traceable father does not command respect in the society and he may suffer psychological debasement in the society for not just fault of his; that is why legitimacy is viewed with all seriousness in sharia legal system.

In Al-Jamiu LIl Usuli Fi Ahadith Al-Rasul (pg 18-19), it was reported that the Prophet Muhammad (S.A.W) once admonished thus:

” 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 Allah 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 Allah and inflicted upon himself universal disgrace.”

It follows from the above Hadith that if a child is born outside wedlock it is not considered legitimate, but if the illicit relationship is established appropriate sanctions on the parties involved are given.

Presumption of legitimacy of a child born in wedlock

In Rabiu V. Amadu (2013)1 SQLR part 1, Pg 28, presided over by Justice Suleiman Galadima, JSC, it was held that:

” Where a child was born within the minimum period prescribed and accepted for a normal birth, going by the Islamic jurisprudence a child born within six (6) months or five (5) months and twenty five (25) days is legitimate child since the maximum period is two (2) years while the minimum period is six (6) months.”

The general view of majority of Islamic jurist is that a period of six months less five days after consummation of marriage is regarded to be the minimum period of gestation, Imam Malik, Shafi’i and Ibn Hambal agree to this view, on the other hand; Imam Abu Hanifa considers the child legitimate six months after the conclusion of the marriage contract not necessarily consummation of the marriage.

There is no consensus regarding to the maximum period of gestation among the generality of jurists, other jurists such as Muhammad Ibn Al-Hakam opined that a child does not remain in its mother’s womb for more than one year, the Hannafi school holds the view that a child may remain in its mother’s womb for the period of two years while the Zahri School holds a liberal view that a child may remain in its mother’s womb for only nine months.

Presumption of legitimacy of a child in Islamic law

Paternity under Islamic law is presumed where:

(1) Marriage contract exist between the spouses either de jure or defacto.

(2) There is actual consummation or possibility of consummation between the spouses without any hindrance this include seclusion between the spouses.

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

(4) There is no legal denial [lian] by the spouses.

According to the general view of the majority of the jurists, where a child is born in a legal wedlock but under a period of six lunar months less five days from the date of marriage, then, the child cannot be attached to the husband.

The authority of the above statement is to be found in the JAWAHIR ALIKLIL at page 381:

” Under no circumstance shall pregnancy or child be denied where the wife delivers complete baby within a period of lesser than six (6) months five (5) or six (6) days less from the date of the marriage contract, in that situation, paternity can be denied without the necessity of resource to Lian (mutual imprecation) as there exists a legal barrier between the child and its suspected father.”

Lian [mutual imprecation or cursing]

Lian is an another way of disowning paternity of a child.

The child of a free woman cannot be disowned except by Lian, the child of a slave can however be disowned without taking the Lian, oath of mutual imprecation.

It has been started in Qur’an Chapter 24 verse 6:

“And those who accuse their wives of adultery and have no witness except themselves, then the witness of one of them shall be four testimonies swearing by Allah that indeed, he is of the truthful.”

Reliance on medical report in determining paternity of a child

Imam Malik school of Islamic jurisprudence recognises and relies on the evidence of an expert on some matters whenever necessary, but medical report in determining paternity of a child is considered unreliable.

In Tabsiratu Al-Hukkam vol. 2, page 100 provided thus:

“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 to establish paternity in case of children of a slave.”

It is obvious from the above view of Maliki school that DNA test cannot be relied in confirming the paternity of a child in Islam except for the child of a slave.

Conclusion

The paternity of a child in islam can be presumed only where the marriage contract exists between the spouses, a father cannot deny the paternity of a child born in a legal wedlock except by way of Lian or where the child was born outside the minimum period of gestation.

M.I. Abdul

Level 3, Faculty of Law, Bayero University, Kano.

jawawumeri@gmail.com

08164165759