Lahore:
Pushing the decision of the district courts, the High Court of Lahore (LHC) rejected a request for determining the fatherhood of a little girl by a DNA test to safeguard her dignity, privacy and protect her against emotional damage.
“The role of the court is not only to decide on disputes, but also to protect human dignity, in particular when the rights of a minor are involved,” observed LHC judge Syed Ahsan Razmi Kazmi, presiding the Mulan bench.
“When scientific tools and DNA tests are used to resolve paternity issues, the Court must act with caution. A child may not be able to speak of itself, but it always has constitutional rights such as the right to privacy, dignity and protection against emotional damage,” observed the judge.
“The law places the well-being of the child above all other concerns. Even if the two parents accept a DNA test, the court must always ask if such a test is in the best interest of the child,” said judge Kazmi.
The petitioner Malik Hamid Raza had filed the request by requesting a DNA test from the girl, citing a prolonged absence of cohabitation with her mother. The respondent had granted the child’s test.
However, the court of first instance rejected the request on April 17.
The petitioner posed an appeal, which was also rejected.
He then challenged orders before the Multan LHC bench.
Judge Kazmi observed that it is the coherent point of view of the Supreme Court of Pakistan that DNA tests cannot be carried out in civil matters without the consent of the parties. However, this case presented a unique configuration where the father (petitioner) and the mother (respondent) had expressed their will for the daughter to undergo a DNA test to determine paternity.
The key question in this case was whether a court should order a DNA test of a minor to determine paternity when the two parties had given their consent to determine paternity.
Given that the minor was unable to defend himself or to give his consent, it was imperative that the court made additional caution when he dealt with questions concerning his well-being and his interests.
The court must play a proactive and protective role to ensure that the rights of minors are safeguarded and that its interests are priority, the Court observed.
“Although parents, as natural guards, can generally give their consent to the name of a minor, this principle is not absolute. Minors even if it means canceling parental decisions and wishes,” observed judge Kazmi.
“The use of DNA tests in legal proceedings, in particular in terms of paternity, is a serious judicial act, so as not to be undertaken lightly or a simple demand. It is not the availability of technology or the consent of the parties which alone justify such tests, but that its objective really serves the ends of justice.
The LHC said that the district courts had rightly judged that at this preliminary stage, the request was premature, especially when evidence of the parties had not yet been recorded. In addition, it has now been well established that DNA evidence is not conclusive, but it serves as corroborating evidence.
