LAHORE: The Lahore High Court has expressed its concern over the growing trend of fathers questioning the legitimacy of their children by requesting DNA analysis, often as a tactic to evade paying maintenance allowances to their ex-spouses.

“It is becoming a common practice in our society that whenever a suit for recovery of maintenance allowance is filed against a person, he comes forward to the court and challenges the legitimacy of the child by moving an application requesting for conducting DNA analysis of the child,” Justice Ahmad Nadeem Arshad observed in a judgement issued recently.

The judge said it is for the honour and dignity of women and innocent children, as also the value placed on the institution of the family, that women and blameless children have been granted legal protection and a defence against scurrilous stigmatisation.

He remarked, “Ethically, questioning the paternity of a child during a maintenance suit can be seen as a tactic to evade responsibility rather than a legitimate claim based on evidence.”

Rejects plea questioning paternity

The judge noted that the request for the DNA test often reflects a desire to avoid financial obligations and may be motivated by personal animosity or financial concerns.

He maintained that such practice should be discouraged and dealt with an iron hand because encouraging such practices would only serve to erode trust in the family unit and the legal system that is designed to protect the interests of vulnerable children.

Justice Arshad noted that when a parent questions the legitimacy of the child, it creates an atmosphere of doubt and insecurity.

He stated that this practice undermines the child’s sense of identity, dignity, and belonging, which can have long-lasting psychological effects.

The judge said it is crucial that courts focus on the child’s needs and emotional welfare, rather than allowing a parent to challenge paternity without valid justification. “The use of DNA tests to challenge paternity, while scientifically valid, should not be viewed as a tool for harassment or delay in matters of child maintenance,” the judge asserted in the order, dismissing a petition of a man, who assailed decisions of two lower courts whereby his application for DNA examination was dismissed.

The mother instituted a suit for recovery of her maintenance allowance, as well as for her minor son, from Sakhawat Hussain, the father of the child.

The father contested the suit by filing a written statement wherein he denied the paternity of the minor. He also filed an application for DNA examination of the minor by submitting that he was not his son.

However, the trial court and an appellate court dismissed his pleas.

As per the facts of the case, the petitioner contracted marriage with the respondent on Jan 11, 2018, however, he divorced her on Aug 17, 2018.

Following the divorce, the minor was born after almost a six-and-half-month of dissolution of marriage on March 1, 2019.

The petitioner did not deny the marriage with the respondent, however, he denied the paternity of the minor.

Justice Arshad noted that by using DNA technology, the courts are in a better position to reach a just conclusion, but the question is whether the petitioner can be allowed to get a DNA test of the minor conducted and produce the said report as evidence in order to challenge the paternity of the child.

The judge observed that as per Article 128 of the Qanun-i-Shahadat Order, 1984, a child born to a woman during the subsistence of a valid marriage or within two years after its dissolution is conclusive proof of his/her legitimacy, provided that the woman remains unmarried after the divorce.

The judge said the Muslim Personal Law provides that legitimacy/paternity must be denied by the father immediately after the birth of the child as per Imam Abu Hanifa and within the postnatal period (maximum of 40 days) after birth of the child, as per Imam Muhammad and Imam Yousaf.

He maintained that there can be no lawful denial of paternity after this stipulated period.

Justice Arshad concluded that the courts below rightly dismissed the applications of the petitioner. He said the petitioner’s counsel, despite hectic efforts and lengthy arguments, remained unable to persuade the court to interfere in the verdicts of the lower courts.

Published in Dawn, December 11th, 2024