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ISLAMIC MEDICAL EDUCATION RESOURCES 04

30.1 FORENSIC EVIDENCE IN TRANSACTIONS

By Professor Omar Hasan Kasule Sr.

30.1.1 FORENSIC EVIDENCE IN MUNAKAHAAT

Medical evidence is used to stop marriage of the physically and emotionally immature. It is used to uphold marriage of a girl whose guardian claims she is too young. It is used to prove age in case of disputes. Chromosomal analysis is used to establish consanguinity. Medical evidence based on chromosomal and genetic testing can be adduced to establish whether intending spouses are related. Medical evidence is used to certify libido and consummation of marriage. Premarital medical examination (genetic, physical, and psychological) is part of the permitted looking at a prospective spouse. This examination can include examinations. Pre-marital tests for potential fertility. Medical evidence for biological parentage can be based on Blood group analysis, DNA analysis, physical resemblance, and physical examination for ability to procreate. Medical evidence on the duration of a viable pregnancy is used to settle some disputes on parentage.

 

30.1.2 FORENSIC EVIDENCE IN DIVORCE

Divorce is not recognized in cases of insanity, medical or psychological stress, and if under the influence of psychoactive substances. Medical science can be used in analyzing reasons for divorce: cruelty (physical and psychological), denial of sex (fear of infection or physical harm), and defects in the spouse (debilitating disease and insanity) preventing normal marital life and sexual intercourse. Hatred or detest of a spouse can be valid grounds for marital dissolution if it is not due to a curable psychosis or neurosis. Divorce or khulu’u in terminal illness do not abolish inheritance rights. Divorce is discouraged in pregnancy and forbidden in menstruation. Medical evidence of parenthood based on chromosomal and genetic analysis makes li’aan irrelevant. The period of iddat is fixed by the Law and cannot be abridged on the basis of pregnancy tests that prove that there is no pregnancy from the previous marriage.

 

30.1.3 FORENSIC EVIDENCE IN MAWARIITH

Medical assessment of intellectual competence is necessary before the will is accepted. If medical evidence certifies that a fetus was alive at the time of death of the inheritee, that fetus has a right of inheritance. If the sex can be determined in utero then the division of the estate can proceed even before birth. Cases of multiple pregnancy can be diagnosed in utero and division of the estate is made. If the baby is born alive it inherits. A stillborn can inherit if it can medically be certified that he was alive at the time of death of the inheritee. Medical evidence using modern technology is able to settle the issue of gender definitively one way or the other removing many of the complications and uncertainties of the past. The law does not recognize inheritance of an illegitimate child from the father but does so from the mother. A child denied by inherits only from the mother. However inheritance is possible in such cases if parenthood can be established based on medical evidence. A relative who contributed even indirectly to the death of the deceased cannot inherit. This holds for all types of death: judicial execution, premeditated, mistake, and indirect. The Law is very strict that the inheritor must survive the inheritee even if for a brief moment. If 2 persons who can inherit from one another die together, medical science can help resolve the problem by forensic determining time of death.

 

30.1.4 FORENSIC EVIDENCE IN MU’AMALLAT

Medical science is useful in several business transactions. Psychological assessment is needed to establish legal competence in cases of disputed contracts. Assessment of the maturity of orphans is needed before they can be given authority over their inheritance. Evidence of insanity is needed in court cases about restricting the insane in disposal of his property. Public health physicians protect against fraudulent or dangerous transactions by inspection of food, drinks, and drugs. Exposure risk assessment is needed to protect workers or those exposed to environmental pollution. Screening of organs and tissues for transplantation is needed to ensure no transfer of infective organisms.

(c) Professor Omar Hasan Kasule Sr. 2004