LAHORE: The Lahore High Court has held that the trial court can resort to DNA testing only with the consent of the parties.
The court said the trial court is otherwise competent to decide the matter based on evidence produced by the parties including resort to physiognomy.
The court passed this order on a petition of Kaneez Fatima who approached the court against the decision of a civil court that directed DNA analysis of minor Umme Mabad alias Maryam to settle the claim between two parties about the paternity of the minor.
The court allowed the petition and set aside the impugned decision of the civil court.
The court citing different cases observed that the consent of the parties is essential to decide their claim about the paternity of the child.
The court said, if the parties do not give their consent for DNA testing to decide the question of paternity, then the trial court can draw its adverse inference as per Article 129 (g) of Qanun-e-Shahadat Order, 1984 and shall proceed based on evidence produced by the parties.
The court also cited a decision of the Federal Shariat Court which held that for tracing the origin of the child the male member of the affair could be traced by evidence, particularly by ascertaining the blood group of the child, the origin of a child could also be ascertained by comparing features and limbs of a child with the alleged claimant, the court added.
The court observed that the trial court in this respect can also take help from Quranic verses and the Hadith of the Holy Prophet (PBUH).
The court referring to the tradition of tracing the origin of the child said physiognomy is a form of circumstantial evidence.
The court said it denotes the ability to examine resemblance in bodily and physical features for the purpose of confirming family relationships, especially in paternity disputes.
The court said most jurists justifying the possibility of resort to physiognomy argued that verification of lineage relationships is an important personal and social need.
The court said some of the jurists are of the view that DNA testing can provide almost certain results while others see its results as probabilistic therefore such testing is always subject to statutory regulations.
Even otherwise DNA results are only corroborative evidence which is to be accepted or rejected in the light of evidence of the parties and in case of dispute, the expert can also be summoned by the trial court to justify its opinion, the court concluded.
Copyright Business Recorder, 2024
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