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ISLAMIC MEDICAL EDUCATION RESOURCES 04

0104-USE OF FORENSIC EVIDENCE

Lecture for 3rd year students on 14th April 2001 by Professor Omar Hasan Kasule Sr.

A. MUNAKAHAAT

MARRIAGE CONTRACTS

Age at marriage: biological immaturity as reason for voiding a marriage. Medical evidence may be adduced to prevent a marriage on the basis of physical or emotional immaturity. On the other hand medical evidence may be used to support conclusion of a marriage contract for a girl whose guardian claims she is too young to marry but who is found by competent physicians to be physically and emotionally ready for marriage.

 

Forbidden marriage: Marriage contracts may be invalid if there is a relation between the souses based on fostering or one of the forbidden categories in the Qur’an: The Law forbids marriage to a foster brother/sister. Medical evidence may be adduced whether the intending spouses were fed from the same milk bank or not. Medical evidence based on chromosomal and genetic testing can be adduced to establish whether intending spouses are related.

 

Libido: It is offensive, makruuh, for a man with no libido to get married. Medical evidence by a treating psychiatrist may be adduced on the state of the libido. Sometimes the loss of libido is temporary due to disease or certain medications.

 

Consummation of marriage: Failure to consume a marriage may be due to male or female causes. Medical evidence can be adduced on a spouse having a functional penis. Impotency due to physical or psychic causes can be treated and should normally not be grounds for dissolving a marriage. Medical evidence can be adduced for vaginal penetration in case of disputes about marital consummation.

 

Premarital medical examination is part of the permitted looking at a prospective spouse. This examination can include genetic, physical, and psychological examinations. Marriage with an insane person can be dissolved if the disease is discovered after marriage. The feeble-minded, safiih, cannot marry with mahr higher than the customary for that place, la yatazawaju al safiih bi akhar min mahr al mithl.

 

Pre-marital tests for fertility can be permitted as part of 'looking at a prospective bride' but are insensitive. Should a spouse disclose fertility problems before marriage?

 

DISPUTED PARENTHOOD

Situations of disputed parenthood arise in the following situations: disowning child in liaan situation, remarriage before end of iddat period, children mixed up in hospital, stolen or kidnapped children, illegal adoption, loss of contact, children lost in war, individual or gang rape, zina of a married woman, artificial insemination and mix-up of sperms, and surrogacy. Medical evidence for biological parentage can be based on Blood group analysis, DNA analysis, physical resemblance, and physical examination for ability to procreate. However the Law uses different criteria for determining legal parenthood. In cases of pregnancy following adultery, the child belongs to the legal husband even if he is not the biological father (KS 549) on the following conditions: the pregnancy was more than 6 months and less than 4 years, the husband was more than 9.5 years, the husband is capable of impregnating a woman. The husband has only the recourse of li’an to deny paternity. The denial is not accepted if it is delayed after birth.

 

DIVORCE & ‘IDDAT

Offensiveness of divorce: Divorce is the most hated permitted act in front of Allah (KS 348: Abudaud K13 B3, Ibn Majah K10 B1). Arbitration is tried before divorce (KS 348: Muwatta K29 J71). Divorce is a last resort when all other alternatives have been exhausted.

 

Conditions for initiation of divorce: in normal circumstances the husband who can

pronounce divorce initiates dissolution of marriage. Intellectual competence, ‘aql, is a pre-condition for validity of the pronouncement of divorce. Divorce by a person certified medically to be insane has no legal effect. Similarly divorce by a person under extreme medical stress to the extent of losing ability of independent judgment is not recognized. Divorce pronouncements under the influence of psychoactive substances are not recognized.

 

Reasons for divorce: Medical science can be used in analyzing reasons for divorce: cruelty, denial of sex, and defects in the spouse. Islam teaches good treatment of the spouse, husn al mu’amalat (MB 1859). Cruelty can be physical abuse or psychological abuse. Medical and psychological definitions and assessments of mental and physical spousal abuse are needed in a family court adjudicating on issues of divorce. The woman can refuse sexual intercourse until the mahr is paid. She can also refuse sex if that will result in physical harm as certified by competent medical personnel. Either spouse can refuse sex for fear of contagious disease as certified medically. Defects in the spouse permitting annulment in front of the qadhi, ‘uyuub muthbitat li khiyaar faskh al nikaah amaam al qadh, include: (a) insanity (b) chronic debilitating disease or disability that prevents normal marital relations (c) physical or functional anomaly preventing normal sexual intercourse such as imperforate vagina in the female and impotency in the male. If the defect is curable or reversible, a grace period of one year is given from the date of the complaint before the judge for annulment. If there is a possibility of harm such as in insanity and infection, immediate separation is ordered until the action before the judge is disposed of. Mental incapacity or insanity can also be grounds for marital dissolution. Hatred or detest of a spouse can be valid grounds for marital dissolution as happened in the case of Bariirat and Mughiith who were separated by the prophet (MB 1879). However psychological assessments is needed because such feelings of hatred for the spouse may be manifestations of specific psychoses or neuroses that can be amenable to therapy.

 

Divorce in special situations: For purposes of inheritance, the Law does not recognize some forms of divorce by a man in terminal illness, maradh al mawt (KS 350: Muwatta K29 H40-44. In the same way khulu by woman in terminal illness may not be recognized. Divorce and khulu in illness in general must be treated with care because they may not be voluntary or the people involved may be legally incompetent. Divorce during pregnancy is discouraged on the grounds of psychological stress for the expectant mother. A woman in menstruation can not be divorced, la tutallaq al haidhat (KS 348: Bukhari K65 S65 B1; Bukhari K68 B1, 2, 3, 44, 45; Bukhari K93 B13; Muslim K18 H66-81; Abudaud K13 B4; Tirmidhi K11 B1; Nisai K27 B1, B3-5, B76; Ibn Majah K10 B2,3; Darimi K12 B1; Muwatta K29 H54; Ahmad 1:43; Ahmad 2:6, 26, 43, 51, 54, 58, 61, 63, 64, 74, 78, 79, 80, 81, 102, 124, 128, 130, 145; Ahmad 3: 386; Tayalisi H19, 20, 68, 1853, 1862, 1871, 1942, 1944). 

 

Other methods of marital dissolution: marital dissolution can occur by li’aan, by faskh, by dhihaar, and by khulu’u. Li’aan is a legal process by which a man denies paternity of a child borne by his wife in effect accusing her of adultery. It is followed by automatic dissolution of the marriage. Proceeding with the process of li’an in the presence of medical evidence that the child is legitimate should not be allowed. A child not resembling the father is not a valid reason for denying parenthood (MB 1881). A child denying his father is a grave sin (MB 2157 & 2158). A judge can dissolve a marriage by the process of faskh. Medical evidence relating to the reasons for faskh must be considered by the court. Divorce by dhihaar occurs when a husband declares that his wife is like his mother. Assessment of the mental condition of the husband is necessary before dhihaar is recognized. The husband should be persuaded to reconsider and return to his wife on payment of kaffaarat. The wife can initiate marital dissolution by the process of khulu’u. Marriage to a safih can be ended legally by khulu’u

 

Period of iddat: Iddat is defined as the post-marital waiting period during which marriage to another man is prohibited. Its wisdom, hikmat, is to ensure that there is no pregnancy from the previous marriage that can cause confusion in the next marriage. It is also a period of mourning for a deceased husband. The time also gives the spouses an opportunity to reconsider and reconcile to avoid a permanent split. Iddat is observed only if there was sexual intercourse before marital dissolution. There are five types of ‘iddat each with a different duration. ‘Iddat al talaq is 3 purities or 3 menstruations. ‘Iddat al wafaat is 4 months and 10 days. The waiting period for a pregnant woman, ‘iddat al hamilat, is the delivery of the pregnancy (MB 1872). The waiting period of a post-menopausal woman, ‘iddat al ya isat, is 3 months. 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. During the period of ‘iddat the woman has rights of housing and nafaqat.

 

CHILD CUSTODY

Qualifications for custody are upright character, ‘adl, intellectual competence,  ‘aql, and profession of Islam. A woman loses custody rights on subsequent marriage. Effeminate men do not qualifiy as custodians. Priority in choosing custodians is as follows: mother, mother’s mother, father, father’s mother, father’s father, full-sister of father, half-brother of father, half-sister of father. The mother automatically has physical custody in the first 7 years of life. The Law recognizes joint custody. If the mother has physical custody, the child has to be with the father during the day for training. At age 7 the child is asked to choose one of the parents or choose to continue joint custody. The father is responsible for financial support of the child. The amount if support is calculated on the basis of medical assessment of minimal nutritional requirements.

 

THE ABANDONED CHILD, hukm al laaqit

The law provides guidelines for rearing abandoned children.

 

B. MAWARIITH

Validity of the will: Disputes may arise about the validity of wills made in terminal illness, al wasiyyat fi mardh al maw, and medical assessment of intellectual competemve may be necessary before the will is accepted. A Muslim must always have a written will with him (MB 1194). The making of a will must be witnessed (5:106-108, MB 1203). The physician may be the last person to talk with the deceased and to know the will. The physician can advise the deceased about shariat aspects of the will. The attending physician cannot be a beneficiary of the will of a terminally ill person.

 

Inheritance of a fetus, miraath al haml: 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.

 

Inheritance of the newborn: If the baby is born alive it inherits, idha istahalla al mawluud yarithu (KS 561: Abudaud K18 B15; Ibn Majah K23 B17; Darimi K21 B47). A stillborn can inherit if it can medically be certified that he was alive at the time of death of the inheritee.

 

Inheritance of a hermaphrodite: The Law provided guidelines about inheritance of a person of indeterminate sex, miraath al khuntha al mushkil (KS 561: Darimi K21 B25). 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.

 

Inheritance of children: The law does not recognize inheritance of an illegitimate child, walad al zina, from the father but does so from the mother (KS 561: Tirmidhi K27 B21, Ibn Majah K23 B14, Darimi K21 B45, Ahmad 2:181, 219). A child denied by li’an, mirath al manfiyu bi li’an (KS 562: Bukhari K68 B30) inherits only from the mother.

 

Inheritance of the spouse: There are special situations about which the Law gives guidelines. The inheritance of a woman whose husband dies before consummation of the marriage, miiraath man maata ‘anha zawjuha qabla al dukhuul (KS 561: Ahmad 4:279, 280; Tayalisi 1273. A woman can inherit from the diyat of the dead husband (KS 561 Abudaud K18 B18, Tirmidhi K14 B18; Tirmidhi K27 B18; Ibn Majah K23 B8; Ibn Majah K21 B12; Darimi K21 B35, 36; Muwatta K43 H9; Ahmad 3:452). Either spouse can inherit if death occurs during the period of iddat. Issues in inheritance and divorce, masail fi al talaq wa al mirath (KS 561: Bukhari K85 B17; Abudaud K18 B9; Tirmidhi K27 B23)

 

Disinheritance due to homicide, mirath al qaatil: The killer does not inherit, la yarithu al qaatil (KS 561: Tirmidhi K27 B17, Ibn Majah K21 B14, Ibn Majah K23 B8, Darimi K21 B41, Muwatta K43 H10,11; Ahmad 1:46). This holds for all types of killing: judicial execution, premeditated, mistake, and indirect.

 

Disinheritance due to uncertainty who died first: The Law is very strict that the inheritor must survive the inheritee even if for a brief moment. The Law provides guidelines on Inheritance in case of people who die simultaneously, miraath man maata ma’an (Darimi K21 B37, Muwatta K27 H15). In case of a car accident or drowning when it is not known who died first, medical science can help resolve the problem by forensic determining time of death, tahdiid waqt al mawt.

 

C. 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 (4:6). 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.

 

D. HOMICIDE AND BODY INJURY

Forensic science can help shariat courts by providing evidence of the following types: identification of the deceased using DNA analysis and blood grouping; determining extent of injury to determine compensation in cases of diyat; deterring mechanism and causes of injury to determine the type of retaliation or compensation; deterring the time of injury; and forecasting the progress of injury and eventual functional loss.

 

E. SEXUAL CRIMES

Forensic science can assist shariat courts establish facts in cases of rape (DNA analysis), fornication; abnormal sexual acts; takhannuth; and istirjaal. However the hadd of zina cannot be established on the basis of forensic findings. It must be based on 4 credible witnesses who can describe the illegal sexual act.

Professor Omar Hasan Kasule, Sr. April 2001