Utambuzi wa Nasaba ya Mtoto Kupitia Uchunguzi wa Chembe Chembe za DNA
Jibu la Swali
Kwa: Najmeddine Khcharem
Swali
Assalamu Alaikum Wa Rahmatulah Wa Barakatuh
Sheikh wetu mheshimiwa, Je, mtu aweza kukana nasaba yake na mwanawe ikiwa imeundwa kupitia tajriba ya urithi ya DNA? Baraka za Allah zikushukie
Jibu
Wa Alaikum Assalam Wa Rahmatulah Wa Barakatuh
Kwanza, kunapotokea hali yoyote ya kutofautiana juu ya kadhia yoyote, inajuzu kutumia njia zozote za sawa za uthibitishaji na kuhakikisha ziko sahihi … Miongoni mwa njia hizi ni chembe chembe za DNA, na njia za uchunguzi wa kisayansi, na njia zozote za uthibitishaji zitakazo pelekea kupatikana kwa rai sahihi katika kadhia yoyote, isipokuwa kukiwepo na nasi maalumu ya kisheria juu ya kadhia fulani, hapo nasi hiyo inakuwa ni yenye kufunga kwa ukamilifu.
DNA ni sehemu ya maumbile kwa wanadamu na viumbe vyenye uhai. Inajumuisha kanda mbili zilizo ungananishwa na kushikamanishwa pamoja mithili ya ngazi. Pambizo zake zinakusanya chembe chembe za sukari aina ya deoxyribose na phosphate, na vipandio vya ngazi hii vinakusanya madini aina ya nitrogen. Hii inamaanisha kuwa kila ukanda unakusanya viwango vya sukari, madini ya phosphate na nitrogen. Kila chembe moja huitwa nucleotide.
Nucleotide hizi zimepangwa imara. Mkusanyiko huu wa kanda za nucleotide umegawanyika katika sehemu kadhaa zinazo itwa genes. Kila gene moja ina sifa maalumu inayotoa maagizo yanayo hitajika kutengeza aina fulani ya protini; mali ghafi yanayo unda misuli ya mwili.
Genes hizi au “utambulisho wa ki-gene” hubeba maumbile ya kurithika kwa wazazi na watoto. Ni maumbile yafananayo yaliyo umbwa na Allah (swt) ili kuunganisha kizazi pamoja, ikiwa tutazingatia kinadharia usahihi wa utafiti na usahihi wa matokeo ya DNA kati ya baba na mwanawe, yaani, tupate maalumati ya genes kutokana na utambulisho wa ki-gene kama ulivyo umbwa na Muumba (swt), kuonyesha kuwa mtoto huyu ni wa baba huyo. Lakini, wajuzi na weledi wanasema kuwa kuna uwezekano wa kutokea kwa dosari katika matokeo ya utafiti kutokana na yanayojiri wakati wa uchambuzi wake, dosari za kibinadamu au za kimaabara, au kuchafuka kwa sampuli, pamoja na ‘shauku’ juu ya uaminifu wa mwenye kufanya utafiti huo na kujitolea kwake katika tajriba ya utafiti huo pasi na kuathiriwa na dhurufu nyenginezo. Yote haya huathiri matokeo.
Hivyo basi, matokeo ya uchuguzi wa DNA sio lazima yawe ya kukatikiwa kwa sababu ya kuwepo kwa uwezekano wa dosari katika matokeo yake kutokana na dhurufu zilizo tajwa juu.
Ikiwa dosari hizo zitakabiliwa, matokeo hayo yanaweza kutumika kama uthibitisho kwa kadhia yoyote ile isiyokuwa na nasi ya kisheria kuithibitisha, lakini kunapo kuwa na nasi ya kisheria ni lazima kujifunga nayo kikamilifu.
Kwa mfano, wakati wa kuutambua mwili wa mtu asiyejulikana… au kuthibitisha uzazi wa mama, au kunapo kuwa na sintofahamu mahospitalini… yaweza kuthibitishwa na kuchunguzwa kwa njia yoyote sahihi ya uthibitishaji, na njia yoyote sahihi ya uchunguzi na uthibitishaji … mithili ya uchunguzi wa DNA, ikiwemo uchunguzi wa makini wa eneo ambalo mwili ulipatikana, pamoja na wahudumu wa wadi ya kujifungulia kina mama hospitalini, na kwa njia nyengine yoyote sahihi ya uthibitishaji, ili kuhakikisha usahihi wa matokeo yaliyo patikana … Yote haya yanajuzu kwa sababu hakuna nasi maalumu ya kisheria ya kuyathibitisha, na hivyo kuangukia ndani ya sheria jumla. Lakini, kunapo kuwa na nasi ya kisheria kuhusiana na kadhia hii ni lazima kujifunga kwayo pekee.
Pili: Sasa twaja katika swali lako kuhusu kukana nasaba ya mtoto (upande wa baba) … Kuna nasi ya kisheria kuhusiana na kadhia hii, hivyo basi ni lazima kujifunga kwayo pekee, kama ifuatavyo:
1- Matokeo ya uchunguzi wa chembe chembe za DNA hayachukuliwi kama dalili ya kadhia hii, kwa sababu kuthibitisha au kukana nasaba ya mtoto kwa mume kuna dalili yake katika Uislamu, nasaba haithibitishwi au kukanushwa pasi kwayo, na fatwa zilizo tolewa baada ya kusambazwa kwa utafiti wa DNA haziathiri hili. Fatwa hizi kutoka katika majumba ya utoaji fatwa, hususan nchini Misri na kamati za Waqf, na hususan nchini Kuwait, zenye rai kadha wa kadha kuhusu kadhia hii. Baadhi yazo zinaruhusu utumiaji uchunguzi wa DNA katika kuthibitisha na kukanusha nasaba, na baadhi zinaruhusu utumiaji wake katika kukanusha pekee na wala si katika kuthibitisha. Baadhi yao zinaruhusu katika uthibitishaji wa nasaba iwapo kuna uhusiano wa kindoa, lakini kutoruhusu kutumiwa katika hali ya uzinifu, na baadhi ya walio lemazwa na thaqafa ya kimagharibi wameruhusu kutumiwa hata katika uthibitishaji wa nasaba katika hali ya uzinifu!!
2- Hukmu sahihi juu ya kadhia hii ni ile ambayo sheria imeifafanua makhsusi kuhusiana na kadhia ya nasaba, na tumeieleza katika kitabu cha Nidhamu ya Kijamii, katika mada ya nasaba:
“Kuhusiana na mume, pindi mkewe anapo jifungua mtoto, inawezekana kuwa anatokana na yeye ikiwa atakuwa amejifungua baada ya zaidi ya miezi sita kuanzia tarehe ya ndoa. Mtoto huyo atakuwa ni wake kutokana na Hadith ya Mtume: «الوَلَدُ للفِراشِ» “Mtoto ni wa mwenye kitanda alicho zaliwa” [Imepokewa na Bukhari na Muslim. Kwa usimulizi wa Aisha (ra)]. Kwa ufupi, maadamu mwanamke ni mke wa huyo mume na amejifungua mtoto baada ya miezi sita kutokea tarehe ya ndoa, bila shaka ni mtoto wa mumewe.
Lakini, pindi mkewe anapo jifungua mtoto baada ya miezi na akawa na hakika kuwa mtoto huyu si wake, inaruhusiwa kwake basi kumkataa kulingana na masharti fulani ambayo ni lazima ayatimize. Ikiwa masharti haya hayata patikana, kumkataa kwake basi hakuta kuwa na maana. Bali, mtoto atabakia kuwa ni wake, apende asipende. Masharti haya ni:
Kwanza: Mtoto anayemkataa kuwa wake ni lazima azaliwe akiwa hai. Hawezi kukataa nasaba ya mtoto ikiwa amezaliwa akiwa maiti kwa sababu hakuna hukmu ya kisheria kuhusiana na kumkataa mtoto aliye zaliwa maiti.
Pili: Bado haja kiri, ima wazi wazi au kwa siri, kuwa mtoto huyo ni wake. Ikiwa ashakiri wazi wazi au kwa siri kwa kuashiria kuwa mtoto huyo ni wake, baada ya hapo si halali tena kwake kukana nasaba yake kwake.
Tatu: Kumkana mtoto huyo kuwe ndani ya wakati na hali fulani. Hali hizi ni wakati wa kujifungua au wakati wa kununua vitu muhimu vya mtoto, au wakati alipo gundua kuwa mkewe amejifungua na alikuwako mjini. Nasaba ya mtoto haiwezi kukanwa nyakati na hali nyengine zozote zisokuwa hizi. Mkewe anapo jifungua mtoto na akabakia kimya, bila ya kumkana ingawa alikuwa na fursa ya kufanya hivyo, basi nasaba yake itanasibishwa na yeye na kamwe hatakuwa na haki ya kumkana baada ya hapo. Chagua hilo linategemea kulingana na mahali alipo gundua uwezo wake wa kumkana mtoto huyo. Ikiwa alijua kuhusu mtoto huyo na akawa na uwezo wa kumkana lakini hakufanya hivyo basi nasaba ya mtoto huyo itabakia thabiti kwake kwa sababu Mtume wa Allah (saw) amesema:
«الوَلَدُ للفِراشِ» “Mtoto ni wa mwenye kitanda alicho zaliwa” [Imepokewa na Bukhari na Muslim. Kwa usimulizi wa Aisha (ra)]
Nne: Ukanaji mtoto huyo unapaswa kufuatiwa na ulaji kiapo cha Li’aan au amkane kupitia kiapo hicho cha Li’aan. Mtoto huyo hatakanwa na yeye isipokuwa kupitia ulaji kiapo hicho. Pindi masharti haya manne yanapo timizwa, hapo ndipo mtoto huyo atakuwa amekataliwa na kupewa mkewe. Ibn Umar ameripoti kwamba:
«أَنَّ رَجُلًا لاَعَنَ امْرَأَتَهُ فِي زَمَنِ النَّبِيِّ صلى الله عليه وسلم وَانْتَفَى مِنْ وَلَدِهَا، فَفَرَّقَ النَّبِيُّ صلى الله عليه وسلم بَيْنَهُمَا، وَأَلْحَقَ الوَلَدَ بِالْمَرْأَةِ»
“Mtu mmoja alikula kiapo cha Li’aan dhidi ya mkewe zama za Mtume (saw) na kumkana mtoto wake, kwa hivyo Mtume (saw) akamtenganisha naye na kumpa mkewe mtoto.” [Imepokewa na al-Bukhari]
Neno Li’aan (kiapo cha kukashifu) limetokana na neno laana kwa sababu kila mmoja katika wanandoa anamlaani mwenziwe (katika mara ya tano ya ulaji kiapo hicho) ikiwa mume au mke atakuwa anasema urongo. Chimbuko la hili ni maneno yake (swt):
(وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ وَلَمْ يَكُنْ لَهُمْ شُهَدَاءُ إِلَّا أَنْفُسُهُمْ فَشَهَادَةُ أَحَدِهِمْ أَرْبَعُ شَهَادَاتٍ بِاللَّهِ إِنَّهُ لَمِنَ الصَّادِقِينَ * وَالْخَامِسَةُ أَنَّ لَعْنَتَ اللَّهِ عَلَيْهِ إِنْ كَانَ مِنَ الْكَاذِبِينَ * وَيَدْرَأُ عَنْهَا الْعَذَابَ أَنْ تَشْهَدَ أَرْبَعَ شَهَادَاتٍ بِاللَّهِ إِنَّهُ لَمِنَ الْكَاذِبِينَ * وَالْخَامِسَةَ أَنَّ غَضَبَ اللَّهِ عَلَيْهَا إِنْ كَانَ مِنَ الصَّادِقِينَ)
“Na wanao watuhumu wake zao (kwa uzinifu) na wala hawana mashahidi isipo kuwa nafsi zao – basi ushahidi wa mmoja wao [utakuwa kama] ushahidi wa watu wanne [kwa kuapa] kwa Allah kwamba hakika, yeye (mume) ni miongoni mwa wakweli* Na kiapo cha tano [kitakuwa] kwamba hasira za Allah ziwe juu yake ikiwa yeye (mume) ni katika warongo” Na adhabu itamuondokea (mke) ikiwa atatoa ushahidi wa watu wanne (kupitia kiapo) kwa Allah kwamba yeye (mume) ni katika warongo* Na kiapo cha tano [kitakuwa] kwamba hasira za Allah ziwe juu yake ikiwa yeye (mume) ni katika wakweli” [An-Nur: 6-9]
Ikiwa masharti haya ya kumkana mtoto hayata timizwa basi hatakanwa na nasaba yake ya kuumeni itanasibishwa na mume na hukmu za ubaba atafungika kwazo.
Haya ndiyo masharti ya hukmu ya kisheria kuambatana na nasaba kuikana kwake, na dalili hii pekee ndio hutumika kwayo”. Mwisho wa nukuu.
Hivyo basi, nasaba ya mtoto hakanushwi kupitia uchunguzi wa DNA, bali hukanushwa pekee kulingana na masharti yaliyo wekwa na sheria yaliyo tajwa juu.
Tatu: ni muhimu kutaja kuwa Uislamu unachunga sana nasaba, na miongoni mwa nasi zake pana kuhusu kadhia hii ni:
Amepokea Bukhari kutoka kwa Sa’ad (ra) kwamba amesema, nilimsikia Mtume (saw) akisema:
«مَنِ ادَّعَى إِلَى غَيْرِ أَبِيهِ، وَهُوَ يَعْلَمُ أَنَّهُ غَيْرُ أَبِيهِ، فَالْجَنَّةُ عَلَيْهِ حَرَامٌ»
“Yeyote anaye jinasibisha na mtu asiye kuwa babake (halisi), na huku anajua siye babake (halisi), Pepo imeharamishwa kwake!”
Ibn Maja amepokea kutoka kwa Abdullah ibn Amr kwamba amesema, Mtume wa Allah (saw) amesema:
«مَنِ ادَّعَى إِلَى غَيْرِ أَبِيهِ لَمْ يَرَحْ رِيحَ الْجَنَّةِ، وَإِنَّ رِيحَهَا لَيُوجَدُ مِنْ مَسِيرَةِ خَمْسِمِائَةِ عَامٍ»
“Yeyote anaye jinasibisha na mtu asiyekuwa babake (halisi), hatasikia harufu ya Pepo; na hakika harufu yake husikika umbali wa masafa ya miaka mia tano.”
Imepokewa kutoka kwa An-Nassa’i katika As-Sunan Al-Kubra kutoka kwa Abu Huraia, kwamba alimsikia Mtume (saw) akisema:
«حِينَ نَزَلَتْ آيَةُ الْمُلَاعَنَةِ: أَيُّمَا امْرَأَةٍ أَدْخَلَتْ عَلَى قَوْمٍ مَنْ لَيْسَ مِنْهُمْ، فَلَيْسَتْ مِنَ اللهِ فِي شَيْءٍ، وَلَنْ يُدْخِلَهَا اللهُ جَنَّتَهُ، وَأَيُّمَا رَجُلٍ جَحَدَ وَلَدَهُ، وَهُوَ يَنْظُرُ إِلَيْهِ احْتَجَبَ اللهُ مِنْهُ، وَفَضَحَهُ عَلَى رُءُوسِ الْأَوَّلِينَ وَالْآخِرِينَ»
“Tangu Ayah ya Li’aan ilipoteremka: mwanamke yeyote atakaye mnasibisha mtoto na watu wasiokuwa nasaba yake, hatakuwa na chochote kwa Allah, na wala Allah hatamuingiza Pepo Yake, na mwanamume yeyote atakaye mkana mtoto wake, na huku anajua fika kuwa ni wake, Allah atamuondelea rehma yake, na atamfedhehesha mbele ya watu wote wa mwanzo na wa mwisho.”
Ndugu yenu,
Ata Bin Khalil Abu Al-Rashtah
7 Rabi’ al-Akhir 1439 H
25/12/2017 M
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