KARACHI, March 13: There is a very strong presumption of paternity of a child in its mother’s husband without any acknowledgment in Islam and a DNA test would be the best method to establish paternity only where the husband disowns it at the first available opportunity, Justice Sarmad Jalal Osmany of the Sindh High Court held on Friday.

Dismissing a petition by a husband for a DNA test of his putative son from his divorced wife, the judgment noted that the child was born in 1999 and the paternity was sought to be disowned three years after his birth.

Distinguishing the precedents cited by Advocate Abul Khair, the petitioner’s counsel, in favour of the DNA test, it pointed out that they dealt with disputes between two groups of spouses and not between husband and wife.

Under the established principles of Islamic law, the judgment said, paternity of a child born in lawful wedlock is presumed in the husband of the mother without any affirmation of parentage on his part.

According to the Sunni schools, the presumption of legitimacy is so strong that in cases where a child is born after six months from the date of marriage and within two years of its dissolution, either by death of husband or by divorce, a simple denial of paternity would not derogate from the legitimacy of child.

The presumption is based on cohabitation and can be overturned by disavowal by husband for want of access to his wife. This right has to be exercised in accordance with the local custom either on the day of the child’s birth or soon thereafter the time of ‘rejoicing’.

Similarly, the judgment noted, Article 128 of the Qanun-i-Shahadat Order provides that birth of a child during the continuance of a valid marriage within six months from its date or within two years after its dissolution is a conclusive proof of its legitimacy unless the husband refuses to own the child or the child is born six months after the termination of the period of Iddat as calculated by the separated wife.

In the instant case, the husband had accepted the minor as his son, which is evidenced by a form submitted by him to Nadra and other documents. As he has failed to disown the child at the first available opportunity, the petitioner was stopped from raising the question of paternity and seek a DNA test for its determination, the judgment said.