Abstract
Birth during marriage is generally a conclusive proof of legitimacy of a child and a party which is questioning
legitimacy of a child must not be allowed to disprove that fact. The stance of a party that birth was not taken place
during valid marriage becomes a question of fact. If it can be proved that birth took place after the expiry of six
lunar months, then it becomes conclusive proof of legitimacy which proof must not subsequently be allowed to be
proved or disproved as the provisions of the Qanun-e-Shahadat Order, 1984 have categorically disallowed to
prove such fact. Thus, where fact of birth during valid marriage is proved then the courts must not allow the
evidence to be taken to disprove such fact. On the other hand, English Law presumed legitimacy irrespective of the
fact that which man actually conceived the child and birth during marriage is always considered legitimate and
thus attached paternity to every such child born during marriage irrespective of conception. However, Islamic
Law is much strict to attach the conditions of legitimacy and described in clear terms that the father who was
actually responsible for conception of child must be ascertained and in this sense attached limitations as to time.
Although one can take the argument that there is a presumption that „child follows the bed‟, but from that point of
view, the presumption is either rebuttable or irrebuttable. Likewise, a man can disown a child as legitimate due to
non-access to wife and thus the aforesaid presumption must be displaced but the fact is that legitimacy itself is a
status which a child acquires on birth and he cannot be deprived of this status on mere subsequent negation of the
father. Usually, all possible doubts must be resolved in favour of legitimacy and courts must not render a verdict
in haste and to brandish a child as bastard or his mother as an unchaste woman. In this background, disowning a
child born during wedlock must carefully be seen. It is to be seen that whether disowning a child is based on
objective reasons. So, if there is an inordinate delay between the birth and the act of disowning a child, then
according to ordinary principles of evidence the husband is estopped to prove the illegitimacy. But even if there is
no such delay, even then the general principle as provided by Qanun-Shahadat Order, 1984 is that the party which
is taking the stance of illegitimacy must be denied to prove or disprove what has been declared as conclusive proof
by the law. However, this general rule is subject to certain statutory exceptions which are required to be adopted
with extreme care and caution and not to be invariably and ruthlessly applied to either prove illegitimacy or
disprove legitimacy. Similarly, the presumption available under the general rule cannot be taken away on the
pretext of DNA testing. DNA testing also could not be considered as a good substitute for the exceptions to the
general rule. The purpose of this article is to carefully discuss the scope of the general rule and critically evaluate
its exceptions while also determining the judicial trends as to admissibility of DNA testing to resolve any such
controversy in the context of this statutory provision.
Amir Mahmood Chaudhry, Naveed-ur-Rehman, Farhana Aziz Rana, Imran Alam. (2022) LEGITIMACY STATUS AND ADMISSIBILITY OF DNA TESTING FOR DETERMINATION OF LEGITIMACY, Journal of the Research Society of Pakistan, volume 59, issue 2.
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