Mandatory Consent for DNA Tests

In the case of Kaneez Fatima v. Senior Civil Judge, heard by the Lahore High Court, Lahore, Kaneez Fatima and others (petitioners) challenged the order passed by the Senior Civil Judge (Family Division), Hafizabad, which directed a DNA analysis of minor Umme Mabad alias Maryam to settle a paternity dispute between two parties. This order was a result of a direction by the Lahore High Court in Writ Petition No. 16871-H of 2022.

Key Facts:

Background: The petitioners contested the order for a DNA test, arguing that such tests for determining paternity require the consent of the parties involved. They relied on the precedent set in Muhammad Nawaz v. Additional District and Sessions Judge and others (PLD 2023 SC 461), which emphasized the need for consent for DNA tests due to fundamental rights to liberty and privacy.

Court's Observations: The court highlighted various precedents regarding the necessity and limitations of DNA tests for paternity determination, referencing cases such as Abdul Latif v. Additional District Judge, Kasur (2016 CLC 1553) and Mst. Laila Qayyum v. Fawad Qayyum and others (PLD 2019 SC 449), which stress the requirement of consent.

Key Legal Points:

Consent for DNA Tests: The court reiterated that conducting a DNA test without the consent of the parties infringes on their fundamental rights to liberty and privacy, as highlighted in Muhammad Nawaz v. Additional District and Sessions Judge and others (PLD 2023 SC 461).

Alternative Methods: The court suggested that in the absence of consent for DNA testing, the trial court could draw adverse inferences under Article 129(g) of the Qanun-e-Shahadat Order, 1984, based on the refusal to undergo the test. It also pointed to alternative methods like physiognomy (qiyāfah) to ascertain paternity, referencing Mst. Rajo Mai v. The State (1992 P Cr.LJ 1011).

Islamic Jurisprudence: The judgment discussed the use of physiognomy in Islamic law for paternity verification, emphasizing its acceptance as a form of circumstantial evidence in the absence of more direct methods like DNA testing.

Conclusion: The court allowed the writ petition, setting aside the order for a mandatory DNA test. It directed the trial court to proceed based on evidence presented by the parties, using methods like physiognomy if necessary, but ensuring respect for the consent principle in DNA testing.

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