DNA Testing to Establish Paternity

The nature of Shariah is such that, it endeavours to abstain from humiliating anybody by referring them to adultery or illegitimacy as much as possible. It tries its best to attribute the child to the husband of the mother.

There is a famous Hadith recorded by Imam Muslim and others in which the Messenger of Allah (Allah bless him and give him peace) said:

“The child will be attributed to the husband and the adulterer will receive the stone.” (Sahih Muslim)

The meaning of this Hadith is that, the right of paternity will be for the person with whom the mother of the child is married to.

In such cases, paternity will not be established with the adulterer. This however, does not always mean that the child in reality is of the husband. Rather, due to the Shariah not considering and accepting the role of the adulterer, it gave this right to the person who is in the contract of marriage with the mother. Even if DNA tests prove the child to be of the adulterer, paternity will not be established with him. The social wisdom behind this is clear to all those who reflect.

The Hadith also says that the adulterer will receive the stone, meaning that he is liable to be stoned as punishment and not receive the child or (as some scholars have explained) the meaning of stone here is “deprivation”, meaning he will not have the right for paternity.

What if the husband denies the child?

In the situation where the husband denies the child to be his and the wife agrees with him, the child will still not be attributed to the adulterer; neither will paternity be established with the husband. The child in this case will be only attributed to its mother.

It should also be known that when we say ‘establishing paternity’ here, it means the right of inheritance for the child, the right of keeping the child for the one with whom paternity is established, and also the obligation of sustenance and financial support, etc….

This is what most of the classical scholars mention in their books. In more recent times, Imam Ashraf Ali al-Tahanawi (Allah have mercy on him) has discussed this with detail in his Imdad al-Fatawa (2.514). The great late Hanafi scholar from Aleppo (Syria), Shaykh Mustafa al-Zarqa [f: whose brilliance and greatness contemporary Sunni fuqaha concur to, despite some methodological idiosyncrasies] also mentions this in his collection of Fatawa. He says:

“Adultery does not establish paternity for the adulterer, even though if it is proven that the child is his. Rather, it is established by either a claim (da’wa) or an acknowledgement (iqrar). This means that he claims or acknowledges the child to be his, but under the condition that he does not refer this claim to adultery. If he claims the child to be his but illegitimate, then this is of no consequence, due to the fact that adultery can not establish paternity, even if it was proved that the child is his.”

He further says:

“This is more or less the opinion in all the schools of thought. I am not aware of any differences. The illegitimate child will only be referred to its mother in such cases.”

Conclusion

From the foregoing we can conclude that, the child will never be attributed to the adulterer. If the husband himself denies the child to be his, then the child will only be attributed to the mother.

And Allah Knows Best