Using DNA test as a proof and evidence in crime such Zina?
As-Salaam `Alaykum. Dear scholars. Is it permissible to consider the DNA test as a legal proof to establish paternity and prove crimes such as Zina? Can the DNA be used as an independent proof? Can it be put in the same category of witnesses? Please answer my queries as this issue has triggered wide debate among our Muslim community.
Wa`alaykum As-Salaam Warahmatullahi Wabarakatuh.
In The Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear questioner, thank you very much for your very interesting and important question, and we hope our efforts, which are purely for Allah’s Sake, meet your expectations.
Before furnishing you with the opinions of scholars regarding the issue, let us first shed some light on what is originally meant by DNA.
What is DNA?
According to Microsoft Bookshelf dictionary (1996-97 Edition), DNA is the deoxyribonucleic acid that carries the genetic information in the cell and which is capable of self-replication and synthesis of RNA or ribonucleic acid.
DNA consists of two long chains of nucleotides twisted into a double helix and joined by hydrogen bonds between the complementary bases adenine and thymine or cytosine and guanine. The sequence of nucleotides determines individual hereditary characteristics.
Here below are the opinions of scholars regarding the issue:
First, the prominent Azharite scholar Sheikh `Abdul-Majeed Subh, states:
I would like to stress that DNA as well as the hereditary print are no more than supporting evidences. In other words, they can not be considered as independent legal evidences on their own.
Thus, if we are to consider DNA as an evidence that is supposed to establish paternity or prove a crime such as Zina, then it must be supported by clear legal proofs such as witnesses or confession.
Second, Sheikh Muhammad Iqbal Nadvi, Imam of Calgary Mosque, Canada, and Former Professor at King Saud Univ., Saudi Arabia, adds:
The DNA testing can be used in Islamic Courts as a supporting evidence in the absence of four just witnesses. However, it cannot be the sole and only evidence to prove a huge crime like Zina which entails inflicting severe punishment on the criminal.
The reason for not accepting DNA as a sole and complete evidence is that DNA testing cannot tell us whether the one who committed adultery did it willingly or unwillingly, be it the man or the woman.
Thirdly, the prominent Muslim scholar and Da`iyah, Sheikh `Abdul-Khaleq Hasan Ash-Shareef, concludes:
First and foremost, I want to state that the crime of Zina is proved by one of two means: the evidence of four reliable witnesses or the confession of the adulterer or the fornicator.
However, other things such as pregnancy and the like are merely signs or indications and are not qualified enough to serve as a legal proof. For instance, pregnancy does not necessarily denote fornication. Therefore, it should not be taken as evidence to prove the crime. The scholars state that the prescribed punishments (Hudud ) are to be fended off for the least occurrence of suspicion.
As far as DNA test is concerned, if it’s proved by reliable physicians and experts that it certainty serves as a valid legal proof, then it is the role of Muslim scholars to decide how to deal with it.
It is clear from the above Fatwas that DNA is not a sufficient proof to establish paternity. It must be corroborated by other proofs. This is due to the continuous change in the principles that govern such things. It stands to reason that Shari`ah principles are based on certainty, and nothing should be left to risk or doubtfulness when it comes to establishing an important issue such as the one referred to in the question.