A few days back, this scribe came across one aggrieved family who revealed that, adopting conversational strategies, their paternal uncles to manipulate, threaten and control them messaged that they could humiliate them during court proceedings by adopting an immoral strategy to get a Deoxyribonucleic acid (DNA) test conducted to challenge their paternity, since they were not stepping back to claim their due inheritance rights [when their father had already died in 1995]. It is a typical example of creating a pretext to deprive women/orphans of claiming their due legal share in their father’s legacy. Being a woman, it is a significant challenge and has serious implications for women’s right to inheritance. It is becoming a common practice in our society that whenever a suit for inheritance is filed, the paternal family steps forward negatively before the Court and challenges the legitimacy of the child by moving an application requesting the conduct of DNA analysis of the child and mostly tampers with the results too.
Though the fact is that a challenge to paternity or legitimacy could be made only by the putative father himself [and that too within the limited timeframe]. As prescribed under Art. 128 of the QSO 1984 — the Article is couched in language which is protective of societal cohesion and the values of the community — the right to challenge paternity is extinguished with the father’s death and any attempt by a third party to reopen such an issue amounts to an intrusion upon settled familial relations and an abuse of process. Also, forcing a woman to offer a sample for her DNA test to determine her paternity violates her liberty, dignity and privacy under Article 14 of the Constitution. There are a series of cases regarding depriving women of their right to inheritance from their ancestral property, (as granted by the Holy Quran and Sunnah) pending before various courts of Pakistan, irrespective of an important duty of the state under Act X of 1991 (Enforcement of Shari’ah Act, 1991).
In view of the provision of QSO, 1984, conclusive proof of the legitimacy of a child or his status as the offspring of the deceased cannot be disproved by any oral evidence as against the documentary evidence from official records, which are public documents (NADRA records) as defined in Article 85 of the QSO, 1984 and it is not out of place to highlight that, as per the dicta of the Hon‟ble Supreme Court laid down [in the case of Ghazala Tehsin Zohra (supra)], DNA testing in civil cases is not permissible. Our higher courts, particularly the august Supreme Court of Pakistan, have consistently condemned the practice of depriving female legal heirs of their rightful shares in inheritance, as ordained by Shari’ah. The SC highlighted the prevalent malpractice among male heirs in Pakistan, who resort to various tactics, including fraud, to deny female heirs their legitimate inheritance rights. While this deprivation causes suffering to those deprived, it also unnecessarily taxes the judicial system of the country, resulting in a needless waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah.
It is a trite principle of Muslim law that the paternity of a child born in lawful wedlock carries the presumption of truth and it cannot be refuted by simple denial. Oral testimony, in the presence of the available evidence on record and the presumption of law, does not carry weight. The law, as laid down by the Supreme Court, clarified that no negative declaration with regard to paternity could be issued. The prohibition against bringing a challenge against the paternity of an individual is designed to protect the right of such individual to dignity and privacy guaranteed by Article 14 of the Constitution, as well as the collective interest of society in protecting the rights and interests of women and children, including the privacy, identity and reputation of children from being besmirched by allegations of illegitimacy.
With the ulterior motive of depriving the offspring/s of the deceased of their identity and right of inheritance, such practice of challenging paternity by paternal families after the death of a father should be discouraged and dealt with an iron hand because encouraging such practices would only serve to erode trust in the legal system that is designed to protect the interests of vulnerable children. It is crucial that courts focus on the child’s needs and emotional welfare, rather than allowing third parties/paternal families [after the death of the father] to challenge paternity without valid justification.
—The writer is contributing columnist, based in Islamabad.
