In the Name of Allāh,
the Entirely Merciful, the Especially Merciful
Praise is due to Allāh, Lord of the worlds, may the blessings and peace be upon our master Muḥammad, the last of prophets, on his family, and all his companions.
Resolution No. 194 (9/20)
Legal Evidence by Presumptions and Signs (Latest Updates)
The Council of the International Islamic Fiqh Academy of the Organization of Islamic Cooperation, holding its 20th session in Oran, People’s Democratic Republic of Algeria, on 26 Shawwāl – 2 Dhū al-Qi’dah 1433h (13–18 September 2012),
Having examined the research papers submitted to the Academy concerning
Legal Evidence by Presumptions and Signs (Latest Updates), Having listened to the discussions on the subject,
Resolves
First: Definition of a Presumption
A presumption is an apparent matter that can be used for knowing an unknown matter.
Second: Types of Presumptions
A presumption is a broad concept that comprises several types based on differ- ent considerations. With the advancement of sciences through time, many new presumptions have been brought into use, including fingerprints in different types, photography, audio recording, electronic signature, electronic mails, and the likes.
Third: Using Presumption
In principle, judicial judgement should not be founded except on Shariah- acceptable proof such as confession, testimony and oath. In the absence of proof of this kind, peremptory presumptions, whether textual or judicial, can be used. Therefore:
- It is permissible to depend on new peremptory presumptions in proof- ing financial rights and other different offences, except hudud and qisas (punishments prescribed by Quran and Sunnah).
- It is permissible to depend on presumptions in proofing contracts unless
the contract in question includes what nullifies the presumption.
- Non-peremptory presumptions may also be considered for proofing rights and the like, when there are other evidence that allay the judici- ary’s
Fourth: Genetic Imprint (DNA)
Scientifically, the genetic imprint (DNA) is a means that can hardly fail in the verification of biological fatherhood and identification of personality, especially in the field of forensic medicine. It sometimes goes up to the same level of sub- stantial presumptions that recognise the majority of Fiqh scholars in matters other than ḥudūd and qisās. In our present times, genetic imprint constitutes a vast development in the area of Fiqh known as qiyāfah (physiognomy), as the majority of scholars from the different Fiqh schools adopt it for verification of disputable descent. However, to be used as a piece of evidence, genetic imprints should be obtained from more than one laboratory.
Therefore genetic imprint can be adopted in the area of parentage verifica- tion, in those cases where the application of qiyāfah(physiognomy) is preferable, including the following:
- Cases of dispute about those who are of unknown parentage, as per the different forms mentioned by Fiqh scholars.
- Cases of suspicion about newborns in hospitals and baby care centers and the like, as well as in vitro fertilization babies.
- Cases of loss and mixing of children because of catastrophes and crises and inability to find their families, or when there are corpses of unknown people after war or any other accident.
Fifth: Genetic imprint cannot be used to negate parentage or be considered superior to the liʿān (mutual curse to deny or confirm adultry).
Indeed, Allāh is All-Knowing.
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