In the Islamic tradition, Islamic rules governing paternity are closely tied to a number of important legal concepts and procedures. Most importantly, paternity regulations have strong connections with marriage and the definition of a licit sexual relationship, mainly in light of the well-known Prophetic report which has established that link “the child should be attached to the (rightful owner of the) bed.”[1] Methods to ascertain this licit relationship, such as acknowledgement and witness testimony, are also recognized as means to verify paternity ties. In addition to these (primary) methods, Muslim jurists also discussed other types of circumstantial evidence, which can be used to evaluate paternity claims. One of the most important types of circumstantial evidence was physiognomy (qiyāfah), which 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.
Although qiyāfah is not mentioned explicitly either in the Qurʾān or the Sunnah of the Prophet, several indirect references are made to it in lineage-related traditions.[2] One of the strongest textual foundations in favor of qiyāfah is the Prophetic report which implies the Prophet’s approval of this method. According to this report, the Prophet was pleased to hear that the physiognomer Mujazziz al-Mudlijī confirmed the paternity of the Companion Usāmah ibn Zayd, despite the fact that Usāmah’s skin was dark and his father’s was fair. The physyiognomer based his opinion on other bodily features and this incident was often interpreted to support the validity of physiognomy as a method for paternity verification.[3]
Juristic discussions on the possibility of using qiyāfah as a means to verify paternity claims is usually traced to this report. Most jurists upheld qiyāfah as a secondary method if it does not contradict a stronger proof such as an established licit sexual relationship. This view is based on: the absence of a definitive evidence against qiyāfah; the Prophet’s tacit approval in the report mentioned above; and also its consistent use by the Prophet’s companions as well as the subsequent generations of Muslim authorities in the legal tradition.[4] The Ḥanafīs, however, argued against the use of qiyāfah on the grounds that it amounts to judgment on the basis of conjecture.[5] According to this view, evidence used for paternity verification should be limited to sharīʿa-approved methods such as the licit sexual relationship for paternity establishment and liʿān for paternity negation. With regard to the alleged tacit approval of the Prophet implied in the above report, the Ḥanafīs note that Usāmah’s paternity was established by the already existing licit sexual relationship (between his parents), not by qiyāfah. Most jurists, on the other hand, 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. Moreover, testimony conditions in paternity cases are less stringent and paternity within legally defective types of marriage is also recognized. This includes paternity within imperfect or deficient marriage contracts (fāsid) and also paternity of children whose birth results from what classical jurists refer to as doubtful intercourse (waṭʾ bi-shubhah).[6]
The emergence of DNA testing as a means for paternity verification has raised important questions about the continuing relevance of traditional methods, including the marriage-paternity connection. Supporters of this new method often argue that if DNA testing can provide almost certain results, it should be used as the main method to verify paternity claims. Critics, on the other hand, argue that DNA evidence is not perfect and its results are often probabilistic, which can also be manipulated. In general, contemporary Islamic discussions on the possibility of using DNA evidence for paternity verification seek to situate this new method within the classical juristic structure for paternity regulations. Keeping in mind the above distinction between primary and secondary means for paternity verification, two main approaches can be identified for the incorporation of DNA evidence: comprehensive and limited. While the 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.[7]
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. 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.[8]
This particular case of DNA paternity testing demonstrates contemporary juristic efforts to cope with change and to accommodate modern developments. While conclusions are not uniform, these efforts almost always appeal to pre-modern discourses and invoke relevant ethical-legal principles associated with a wide range of topics in the areas of marriage, divorce, as well as the evidentiary structure and procedures that govern their implementation. The main question that DNA testing poses, however, is whether the paternity relationship would remain tied to the marriage-paternity presumption. While modern (secular) legal thought seems to have settled this issue in favor of treating paternity as an independent issue, Islamic legal discussions reveal that so far the majority view tilts towards maintaining this connection.
Notes:
[1] Ibn Ḥajar al-ʿAsqalānī, Fatḥ al-Bārī bi Sharḥ Ṣaḥīḥ al-Bukhārī, 13 vols (Cairo: Maktabat al-ʿIlm, 2000), 12:34.
[2] For more on paternity establishment, see Ayman Shabana “Paternity between Law and Biology: The Reconstruction of the Islamic Law of Paternity in the wake of DNA Testing,” Zygon: Journal of Religion and Science 47, no. 1 (2012): 214-39. For more on paternity negation, see Ayman Shabana, “Negation of Paternity in Islamic Law between Liʿān and DNA Fingerprinting,” Islamic Law and Society 20, no. 3 (2013): 157-201.
[3] Ibn Ḥajar al-ʿAsqalānī, Fatḥ al-Bārī, 12:61.
[4] Ibn Qayyim al-Jawziyyah, al-Ṭuruq al-Ḥukmiyyah fī al-Siyāsah al-Shaʿiyyah (Cairo: Dār al-Ḥadīth), 182.
[5] al-Sarakhsī, al-Mabsūṭ (Beirut: Dāral-Maʿrifah, n.d.), 17:70; al-Qarāfī, Kitāb al-Furūq: Anwār al-Burūq fī Anwāʾ al-Furūq, 4 vols. (Cairo: Dār al-Salām, 2001), 3:897-903
[6] See, al-Kāsānī, Badāʾiʿ al-Ṣanāʾiʿ fí Tartīb al-Sharāʿiʿ, 10 vols. (Beirut: Dār al-Kutub al-ʿIlmiyyah, 2003) 8:467.
[7] Ayman Shabana, “Islamic Law of Paternity between Classical Legal Texts and Modern Contexts: From Physiognomy to DNA Analysis,” Journal of Islamic Studies 25, no. 1 (2014): 1-32.
[8] It is published in Majallat al-Majmaʿ al-Fiqhī al-Islāmī 13/15 (2002), 478-81. Other statements have also been issued by the Islamic Fiqh Academy of the Organization of Islamic Cooperation and the Islamic Organization for Medical Sciences.
Suggested Bluebook citation: Ayman Shabana, Islamic Law of Paternity and DNA Evidence, Islamic Law Blog (June 28, 2021), https://islamiclaw.blog/2021/06/28/islamic-law-of-paternity-and-dna-evidence/)
(Suggested Chicago citation: Ayman Shabana, “Islamic Law of Paternity and DNA Evidence,” Islamic Law Blog, June 28, 2021, https://islamiclaw.blog/2021/06/28/islamic-law-of-paternity-and-dna-evidence/)