In a move described as a historic turning point in litigation and personal status cases in Egypt, the Mansoura Court of Appeal (21st Personal Status Circuit) has issued a landmark ruling establishing a girl’s paternity to her biological father, who was convicted of raping her mother, based on DNA evidence as well as what the court described as the “principles of Islamic Sharia” and the Child Law.
The reasoning of the ruling, issued in May, has not yet been officially published, however, Al Manassa obtained a copy.
In its reasoning, the court held that the absence of a marriage contract in rape cases should not prevent the establishment of paternity where conclusive scientific evidence exists.
A roundtable discussion organized by the Centre for Egyptian Women Legal Assistance (CEWLA) on Sunday, attended by legal experts and Islamic law specialists to discuss its implications, highlighted that the ruling in Appeal No. 9829 of Judicial Year 75 (Family) brings to an end the long legal and humanitarian ordeal of Amal Abdelhamid, who was abducted and raped, resulting in the birth of her daughter in 2019.
Throughout those years, Amal faced the routine refusal of official authorities to establish her daughter’s paternity to her rapist, a situation she previously told Al Manassa threatened the child’s future by depriving her of a birth certificate and, consequently, the ability to enroll in school like other children.
Before this ruling, Egyptian courts had consistently refused to establish the paternity of children born to rape survivors, as part of a broader judicial position that did not recognize children born of adultery or rape as legally attributable to their biological fathers.
The courts had relied on the Islamic legal principle of “al-walad lil-firash,” meaning that the child belongs to the marital bed (i.e. the husband), derived from the prophetic hadith, “The child belongs to the marital bed, and the adulterer gets stoned.” This means adulterers have no legal claim to their child and paternity is generally recognized only within marriage.
In Amal’s case, the refusal to establish her daughter’s paternity continued even after the Court of Cassation issued a final criminal ruling convicting the perpetrator of abduction and rape and sentencing him to imprisonment with hard labor. It was only when her paternity appeal reached the Mansoura Court of Appeal that she finally obtained the ruling she had sought.
A legal battle
The reasoning details a complex legal battle led by Amal’s lawyer, El-Sayed Badra, particularly since the criminal court had initially acquitted the rapist of the charges of abduction and rape.
The acquittal was not the only factor complicating the case: it coincided with a Family Court ruling on Sept. 27, 2019, dismissing Amal’s paternity suit, Case No. 237 of 2019. That judgment became final after no appeal was filed within the legally prescribed period.
The legal landscape, however, changed dramatically when the Public Prosecution appealed the acquittal before the Court of Cassation. The court, in turn, convicted the defendant of abduction and rape, and sentenced him to one year of imprisonment with hard labor—a lighter sentence, on the grounds that he had been 15 years old at the time of the crime.
The Court of Cassation ruling enabled Badra to file a new paternity suit before the Family Court based on new evidence—including the defendant’s confession and DNA test results confirming his biological relationship to Amal’s daughter—uncovered during the Public Prosecution’s investigation. Badra subsequently filed a new case, No. 592 of 2021.
Despite the new evidence, the Family Court again rejected Amal’s request to establish her daughter’s paternity, ruling that it could not hear the case because it had already made its decision in the previous lawsuit.
Amal’s legal team appealed that decision, arguing that it violated the law by disregarding the new basis for the case and the newly available evidence, namely the defendant’s confession and the DNA analysis confirming the child’s paternity.
The appeal stressed that this evidence had not been before the court when it ruled on the original paternity case and that, therefore, the doctrine barring reconsideration of a previously decided case did not apply because the grounds of the new lawsuit differed from those of the first.
Justice served
In its reasoning, the Court of Appeal addressed the reliance on the principle that “the child belongs to the marital bed” to reject paternity claims in cases involving children born of rape. It reinterpreted the principle based on a recent fatwa issued by Al-Azhar’s Council of Senior Scholars, which affirmed that the rule was originally intended to preserve lineage and protect the family in cases involving existing marriages where paternity is in dispute, and should not be used to deny the rights of a child born as a result of a criminal act such as rape.
The court also based its certainty regarding the child’s paternity on the final Court of Cassation ruling, sentencing the father to imprisonment with hard labor after finding that he had “abducted the mother by force, taking her against her will into the building where he raped her.” The Court of Appeal regarded that criminal judgment as conclusive proof that the act had occurred and that the defendant had committed it.
The court further stated that the forensic report reinforced the court’s conviction, concluding that the DNA profile extracted from the child’s blood sample matched the DNA profiles extracted from both her mother’s and her father’s blood samples, confirming beyond doubt that the girl was their biological child.
The court explained that reliance on scientific methods is legally permissible under the amendments introduced by Child Law No. 126 of 2008, which explicitly provide that “a child has the right to establish his or her legitimate lineage through all means of proof, including legitimate scientific methods, foremost among them at present DNA testing.”
The court stressed that establishing paternity in such cases does not justify adultery but rather punishes the perpetrator while protecting the innocent victim. It stated that “establishing paternity in this case does not in any way constitute recognition of the crime of adultery, justification for committing it, or minimizing its gravity. It is a reprehensible crime prohibited by the Quran, the Sunnah, and the consensus of the Muslim community.”
“However, Islamic law distinguishes between proving the crime and imposing punishment on the one hand and preserving the rights and lineage of innocent people on the other,” it added. “No innocent person should bear the consequences of another’s wrongdoing.”
The court concluded that attributing the child to her father fully protects her constitutional and legal right to lineage, shields her from social stigma and marginalization, and fulfills one of the central objectives of Islamic Sharia in preserving lineage without diminishing the gravity of the underlying criminal offense.
Concerns over implementation
Despite welcoming what he described as a “judicial and religious precedent” after a legal battle lasting more than six years El-Sayed Badra, Amal’s lawyer, expressed concern that the ruling could face “administrative obstacles and arbitrary implementation” by the Civil Status Department at the Ministry of Interior, which is responsible for issuing and correcting birth records and registering fathers’ names.
Badra told Al Manassa that these concerns stem from rigid administrative regulations within the department, which have historically required the existence of a formally registered marriage before recording births, potentially leading the department to delay or refuse to enforce the appellate ruling on procedural grounds.
He stressed that denying the girl an official birth registration and identity documents listing her father’s name would amount to rewarding the perpetrator for evading his responsibilities while imposing a second punishment on the survivor and her innocent daughter by depriving the child of her constitutional rights to education and healthcare.
Badra said he would immediately begin notifying the Civil Status Department and pursuing enforcement of the ruling, expressing hope that the Ministry of Interior would uphold the rule of law and the binding force of final judicial rulings over rigid administrative practices, sparing the child from legal limbo and social stigma.
