LAHORE: The Lahore High Court has set aside a civil court order for DNA examination of a minor girl to determine her paternity, observing that the consent of the parties is necessary to settle the claim.

Kaneez Fatima, 58, assailed the order passed by the senior civil judge of Hafizabad wherein a direction was issued for a DNA analysis of minor Umme Ma’abad alias Maryam in order to settle the claim between two parties about her paternity.

The order of the civil judge was a result of a direction passed by the LHC in 2022 on a petition by Asim Sheraz and Maria Gull, who claim to be the biological parents of the child.

However, the Supreme Court in 2023 issued a judgement prohibiting conducting DNA without the consent of parties.

Observes parties’ consent necessary or court can opt for physiognomy

Advocate Fahad Siddiqui, the counsel for the couple, said his clients had contracted marriage against the will of their families and they had a daughter in wedlock.

He said the couple later separated due to the pressure from their respective families and the mother also went to the United Kingdom for study purposes.

Later, the father handed over temporary custody of the minor daughter to Kaneez Fatima, who was a stranger.

After sometime, the lawyer said, the couple reunited and approached Fatima to get their daughter back. However, he said, the woman refused to hand over the minor.

Justice Muhammad Amjad Rafiq heard the petition of Fatima, who through her lawyer relied upon the 2023 judgement by the Supreme Court, saying the DNA examination for the purpose of paternity is always subject to consent of the parties.

The counsel for the couple argued that the petitioner was on a 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, he conceded that evidence of the parties before the lower court was almost complete, therefore, an appropriate direction in this regard be passed to the trial court.

Justice Rafiq observed that some of the jurists opine the DNA testing can provide almost certain results while others see its results as probabilistic, therefore such testing is always subject to statutory regulations.

Even otherwise, he said, the 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.

The judge observed that if the parties concerned do not give consent for DNA examination, then a trial court can draw adverse inference as per Article 129 (g) of Qanun-i-Shahadat Order, 1984 and shall proceed to decide the question of paternity on the basis of evidence produced by the parties.

“In this respect, the court can also take help from Quranic verses and Hadith of the Holy Prophet,” he said.

The judge noted that the Federal Shariat Court in a 1992 judgement 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.

Striking down the civil court’s order, Justice Rafiq observed that the 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.

Published in Dawn, May 26th, 2024

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