@article{article_356846, title={Denial of Paternity by DNA Fingerprint Test in Islamic Family Law}, journal={Cumhuriyet İlahiyat Dergisi}, volume={21}, pages={851–882}, year={2017}, DOI={10.18505/cuid.356846}, author={Yılmaz, İbrahim}, keywords={İslâm Aile Hukuku,Nesep/Soybağı,Nesebin Reddi,Liân/Mülâane,DNA Parmak İzi Testi}, abstract={<p class="MsoNormal" style="text-align:justify;"> <b>Abstract: </b>There are two ways to <span lang="en-us" xml:lang="en-us">deny the lineage of a child who was born in </span>
marriage contract in classical Islamic legal doctrine. The first is to sue in
court by husband accusing his wife by adultery. In this case, both the wife and
husband swear properly (liʿān / mulāʿana)
in the court opened and as a result of the court, the child’s lineage falls
from husband. The second is that there are certain special circumstances that
are inevitable for the child to be born in marriage from husband in terms of
reason and science/ medical point. In such a case, the husband has the right to
sue the denial of lineage without the need for a liʿān/mulāʿana application. Nowadays (recently), with the
development of science and technology DNA fingerprinting is used as a means of
proof in <span lang="en-us" xml:lang="en-us">proving the lineage and
denying the lineage </span>. Contemporary Islamic law researchers have stood on
the issue of the determination or denial of lineage with DNA fingerprint test.
This study will focus only on “D <span lang="en-us" xml:lang="en-us">enial
of Lineage/P </span>aternity <span lang="en-us" xml:lang="en-us">by DNA Fingerprint Test in Islamic (Family) Law </span>”. </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <b>Summary: </b> <span lang="en-us" xml:lang="en-us">In Islamic Law has given great importance to determine a lineage truthfuly, and the right for husband to refuse
the lineage of a child, who was born in marriage contract as long as the child
was from somebody else. </span> </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <span lang="en-us" xml:lang="en-us">There are
two ways to deny the lineage of a child who was born in marriage contract in
classical Islamic legal doctrine. The first way is the method known/called as
liʿān/mulāʿana. As a legal term the liʿān/mulāʿana is both the wife’s and
husband’s swearing in the court opened for denial of lineage (liʿān) after the
husband’s blaming his wife for adultry (qazif). </span> </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <span lang="en-us" xml:lang="en-us">The second
way which makes the child’s paternity impossible to husband are conditions such
as knowing with certainty that the woman got pregnant from someone else before
mariage contract or her giving birth after marriage contract before six months
completed; realizing that the husband could not have (was not able to have) a
child because of his biological and/or physiological defects (disabilities)
and/or the sexual intercourse between the husband and wife is not possible. In
such circumstances, the right to refuse the lineage of this child who was born
in marriage contract has been legitimated to the husband without liʿān. </span> </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <span lang="en-us" xml:lang="en-us">Nowadays
(recently), with the development of science and technology, DNA fingerprinting
is used as a proof in denial or approval of the lineage cases. </span> </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <span lang="en-us" xml:lang="en-us">DNA
fingerprint is defined as the genetic code transmitting from parents to
children through inheritance, that signifies each individual’s particular
biological identity and that is possible to be known within the framework of
specific scientific guidelines. </span> </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <span lang="en-us" xml:lang="en-us">There are
differences as well as similarities in the physiological structure/creation
(phenotype) of each person. In the same way, each person’s biological and
genetic structure/characteristics (genotype) are similar to each other but
there are some differences between them. As a matter of fact, it has been
scientifically proven that people who look physiologically very similar are
different from other people in terms of biological/genetic (genotype)
characteristics such as "fingerprints, phonemes, scent marks and DNA
fingerprints". </span> </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <span lang="en-us" xml:lang="en-us">On the
other hand, the determination or denial of lineage is closely related to many
legal issues as inheritance, custody, marriage (marriage prohibition), hıdane
(right of protection and training), right of alimony, āqila, witness, etc. </span> </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <span lang="en-us" xml:lang="en-us">That is
why, in Islamic law, in the case of a precise information, evidence or a strong
possibility about the child born in a true marriage is adulterated or belongs
to the pre-wedding/before the wedding, the husband has been given the right to
refuse the child’s lineage/surname by resorting to the liʿān or without
resorting to the liʿān. </span> </p> <p> </p> <p class="MsoNormal" style="text-align:justify;"> <span lang}, number={2}, publisher={Sivas Cumhuriyet Üniversitesi}