The Family Court in Nazareth recently received a lawsuit filed by a woman against a Muslim man with whom she previously had a relationship, asking the court to require him to perform a genetic test that would prove his paternity of one of her children. The man argued that Sharia, or Islamic religious law does not recognize paternity outside of marriage, but Judge Mahmoud Shadafna ruled that the best interest of the child requires the test.
In the past, the woman filed a lawsuit against another man with whom she had a relationship, to ascertain his paternity over her three children, including the 7-year-old who is the focus of the current lawsuit. In that case, it was determined that man is the father of her other two children only.
Under these circumstances, she went to court regarding the current defendant. She claimed that they had an extramarital relationship, and that a tissue test should be ordered to confirm that he is the father. The attorney general agreed with her position. The man claimed that he and the plaintiff had a casual sexual relationship, and they had no intention of getting married. Since then, he moved on with his life, married another woman and had children with her. According to him, the lawsuit that was filed six years after the birth surprised him greatly and clearly could cause him heavy damage.
He added that Sharia, or Islamic religious law does not recognize paternity outside of marriage and since there is no dispute that the parties were not married paternity of the biy should not be ascribed to him.
During the legal process, a report was submitted to the court on behalf of the welfare office that recommended conducting a tissue test to determine paternity. The social worker stated that the child does not currently have a registered father, and that "the test will contribute to the investigation of the truth and will assist in realizing the minor's right to know the identity of his biological father and his family affiliation."
Based on the allegations and evidence before him, Judge Shadafna noted that the question that needs to be decided is whether the defendant can be required to conduct a paternity test despite his objection. After reviewing the guiding jurisprudence in the field, the judge concluded that the legal balance is tipped toward establishing paternity. He justified this by saying that the principle that guides the court in a paternity claim is that of the best interests of the child. He pointed out that this is a principle of paramount importance that overrides any other consideration, and stated that the defendant's arguments do not justify a deviation from this principle.
Muslim personal law - in which the defendant was hanged to avoid scrutiny - does not have the power to prevent the investigation of the mother's claim, according to the judge. In his decision he made it clear that clarification of the claim is in the best interest of the child.
The judge rejected the defendant's claim regarding the damages that may be caused to him as a result of the test. He wrote that performing the test will contribute to reaching the truth so that the child will know who his biological father is. The judge ordered the defendant to undergo a genetic test to ascertain paternity, with two-thirds of the test being financed by the plaintiff and the balance from his own pocket.
The article was written in collaboration with the Israeli law website PsakDin