DNA Analysis to Establish Paternity: Right of the Father or the Mother?

Allah, the Almighty has prescribed qadhf penalty [scourging the person with eighty stripes] for anyone who accuses a certain person of committing adultery without bringing forward clear-cut evidence. He, the Almighty has also prescribed the provision of li `an as a solution for the case when a husband accuses his wife of committing adultery without having clear-cut evidence. In such a case, the parent-child DNA analysis may be applied if it is the wife who asks for it in order to prove her innocence and establish the paternity of her child. If it is the husband who asks for it to confirm his accusation, it is not to be done unless the wife agrees, for, in principle and by virtue of the provision of li `an, the wife is regarded as innocent and her husband’s accusation does not affect her innocence.
Sheikh Yusuf Al-Qaradawi, states the following: “Allah, the Almighty has prescribed the qadhf penalty for anyone who accuses a certain person of committing adultery without proving his allegation by bringing four trustworthy persons to testify that they have seen the act of adultery with their naked eyes, without having premeditated to spy on the adulterers.
Allah, the Almighty says in this respect: “And those who accuse honorable women but bring not four witnesses, scourge them (with) eighty stripes and never (afterward) accept their testimony – they indeed are evil-doers – save those who afterward repent and make amends. (For such) lo! Allah is Forgiving, Merciful.” (An-Nur: 4-5)
However, there is an exception made with regard to the ruling in this verse, that is, when the accuser is a husband of the accused. In this case, he is not required to bring four witnesses; instead, he is to give a solemn oath four times that his wife has committed adultery, and then invokes Allah’s curse upon himself if he is telling a lie in this regard. This would avert from him the penalty of qadhf.
Allah, the Almighty says: “And (as for) those who accuse their wives and have no witnesses except themselves, the evidence of one of these (should be taken) four times, bearing Allah to witness that he is most surely of the truthful ones. And the fifth (time) that the curse of Allah be on him if he is one of the liars. And it shall avert the chastisement from her if she testifies four times, bearing Allah to witness that he is most surely one of the liars; And the fifth (time) that the wrath of Allah be on her if he is one of the truthful.” (An-Nur: 6-9)
The following step in the case of li’ an is that the spouses are to be separated, and the child is called after the name of his/her mother. The mother here is not to be affected by the accusation, which guarantees her and her child protection from scandal, especially that it is not known for certain, who has told the truth: the husband or the wife.
After the discovery of the DNA analysis, establishing paternity has become possible. However, the Muslim scholars are unanimous that if the husband has asked to apply the DNA analysis to support his denial of paternity of his wife’s child, his request is not to be granted, for this will make the wife miss the protection guaranteed to her by the provision of li` an .
On the other hand, scholars have differed in opinion if it is the wife, who asks for the application of the DNA analysis. The majority of scholars are of the opinion that her request is not to be granted. According to them, the measures of li `an are sufficient, for this is what Almighty Allah has prescribed in this case.
However, in my point of view, there is nothing wrong in granting the request of the wife in this case, for she will not ask for that unless she is sure that the result will be in her favor.
Requesting the application of the DNA analysis on the part of the wife brings about three important benefits:
Firstly, she proves her innocence of the accusation made against her.
Secondly, she establishes the paternity of her child. (As it is known in Shari `ah, it is of a paramount importance to protect lineage against mixing.)
Thirdly, this will reassure the husband and remove the seeds of doubt in his heart regarding the paternity of his child.
Hence, answering the request of the wife will be of a great benefit to the husband, the wife, and the child.
The Shari ah would not refuse a measure that accomplishes such a great benefit and which does not contradict a religious principle. Hence, a parent-child DNA analysis is to be applied if it is the wife who asks for it.”