Al-Ahram Weekly Online   1 - 7 June 2006
Issue No. 797
Published in Cairo by AL-AHRAM established in 1875

Legally yours

Dena Rashed watches as the long-awaited resolution of Hind El-Hinnawi's paternity law suit casts a dubious shadow on society

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El-Hinnawi cheers for the verdict that declared El-Fishawi the father of her daughter; El-Fishawi

Two years after the media frenzy over the issue erupted, the appeal court declared actor Ahmed El-Fishawi, 25, the father of interior decorator Hind El-Hinnawi's 19-months-old daughter, Lina. The ruling recognises El-Hennawi's claim to having had a secret urfi (customary) marriage with El-Fishawi even in the absence of documentation to prove it. The first case of its kind to receive media attention across the Arab world, the Fishawi-Hennawi feud had shocked the public, especially after El-Fishawi -- the son of two high-profile actors, Farouq El-Fishawi and Somaya El-Alfi -- conceded having had an affair with El-Hennawi on the TV show El-Beit Beitak, having initially denied any connection with her. El-Hinnawi's decision to keep the baby even despite the stigma attached to a childbirth outside a publicly declared marriage -- and no less her parents' unstinting support for her -- set a precedent, so did attempts at conducting a DNA test on El-Fishawi, which were frustrated. The feud spiralled in the media even after a first court rejected El-Hinnawi's appeal, dividing society into a camp for and one against -- and a third one who, condemning both El-Fishawi and El-Hinnawi, expressed interest only in Lina's future.

This is but one of 14,000 paternity cases currently being handled at courts, whether as a result of urfi marriages or non-conjugal love. "People still won't leave me alone," El-Hinnawi told Al-Ahram Weekly after the verdict was issued, "and whether they are congratulating me or saying horrible things, I've learned to stop listening. When things go wrong, many people deny their share of the responsibility -- I paid the price of my mistake. But I decided to stand by my daughter and the law stood by me. I believe the court ruling will be relevant to many people; it will affect the decisions people make in their lives, especially men, though I doubt if many others in my situation will actually have the stamina to pursue their fight to the end. Still, the law will never change without pressure from the people." El-Hinnawi had swooned on hearing the ruling; but her attorney, Amira Baheyeddin, was probably even more overjoyed: "I won. She got her rights and those of her baby. It's once every five years that a case like this comes up; it takes courage to go through a confrontation. It is a step towards positive change, so that in the future such women aren't accused of prostitution." More significantly, the ruling will deliver a firm message to young men: "Don't play around, thinking you can get away with it." Even without documentation, a truly wronged party like El-Hinnawi can prove her case.

The judge was convinced of the marriage by the testimonies of witnesses as well as the two adversaries, Baheyeddin went on to explain, on the basis of which he established that the baby was born as a consequence of marital relations. The ruling, she says, raises several legal issues: "Society is ready for a million Hinds to have abortions and deceive their future partners rather than stick with the truth." She admitted she would have been personally frustrated had the case been lost, aside from her concern for the baby. In the same vein El-Hinnawi was firmly supported by a range of women's organisations: Azza Soliman of the Centre for Egyptian Women's Legal Assistance (CEWLA), for example, thought the ruling cheering in that it protects the rights of "fatherless children", some of whom, she added, have no mothers either, ending up on the streets. "The idea is that women are not angels. Both men and women make mistakes and both should bear the responsibility for their actions." In a conference on urfi marriage held a few years ago, there were many cases "requiring more attention", she added, announcing that CEWLA is currently organising a conference on the El-Hinnawi case and its ramifications, besides presiding over the string of debates resulting from whether or not El-Hinnawi will be officially divorced now that the court established she was married -- a point El-Hinnawi has not yet thought out. "First I must issue a birth certificate for Hind," she says. As of now debates about relevant religious fatwas, the causes and effects of love out of wedlock will likely preoccupy the media.

For his part criminologist Ahmed El-Magdoub, who conducted much research on law and society, argues that it would be naïve to imagine that such a ruling would cause a young man to think twice before "playing around", because the law is unlikely to impinge on "much stronger, sexual motives". Rather, he says, the case propagates notions of sexual liberation, indeed is part of "a sort of a conspiracy to destroy the values of the Egyptian family, in the way it was handled", following the recommendations of the 1995 Peking Conference. The continuous presence of El-Hinnawi's family, he sees as part of a plan to alter social values under the banner of child protection. That said, El-Magdoub believes El-Hinnawi's case to be a side issue in the broader context of the urfi dilemma. "There are in the Egyptian population 3.5 million girls over 35 years old who have not been married, and another 3.5 million over 20, not to mention 11 million unmarried men," he elaborates. "We have a marriage crisis, which together with the media-fuelled sexual need places the young in a deadlock." Many, he says, are in no financial or social position to marry.

Likewise with debates over child rights: many had argued that, since there was no proof of El-Fishawi's marriage to El-Hinnawi, paternity could not be established. Others issued a fatwa that, even when a man acknowledges a child from a non-conjugal relationship, that child should still not have paternity rights. Muslim scholars hold a different view, however. According to Abla El-Kahlawi, dean of Islamic Studies for Girls at Al-Azhar University, "We need not opt for the stricter interpretation. If for example a man admits his paternity to a child, then he and the girl should be married. Which situation is better and more realistic..." Abdel-Moeti Bayoumi agrees: "Most of interpreters of the Sharia'a have concluded that the child out of an illicit affair ( zina ) should not be related to the father even if the father admits his paternity, but others like Ibn Sirin, Al-Imam Al-Hassan and Abu Hanifa, whose views are followed in Egyptian personal law, believe that paternity can be proven whether by the father's confession or the testimonies of witnesses -- even in the absence of legal documents." The ruling in question, Bayoumi goes on to explain, was based on testimonies of witnesses, which stood in for a marriage contract. "It doesn't encourage illicit affairs," he said. "On the contrary, it holds those who play around responsible for their actions. I believe we should have legislation that, even as it punishes those who admit to illicit affairs, holds them responsible for their actions, so that we do not have fatherless children..."

Since the verdict El-Fishawi has announced that he never married El-Hinnawi -- he made a phone appearance on a popular TV programme -- though he intends to abide by the ruling; neither El-Fishawi nor his father could be reached to proffer comment. Others have brought up the fact that El-Fishawi was not legally forced to have a DNA test. Though El-Magdoub argued that the results of such a test would not be 100 per cent accurate, Soliman believes it could help many children. "We still can't force someone to take a DNA test, because legally it is the plaintiff who must offer evidence, not the other way round. Anyway, fatherhood is not a matter of name; it is more of a feeling," said El-Magdoub. Still, "DNA tests should be obligatory, because we should make use of modern science when lives are at stake, argued Soliman. El-Kahlawi seems to agree: "A child's rights should be protected, and if a DNA test is needed, then it should be used." She added that Muslim scholars require some time before they can legislate for the latest scientific developments, articulating the most frequent conservative concern: "She also said that some of the Muslim scholars need time to include the modern techniques in legislating following the Prophet's footsteps. However, she voices the concern of many conservatives on the way the case was dealt with. "The exposure of the case was repulsive and reflects a bad image because of the bluntness with which it was discussed. In the end it is a moral tragedy. This is not about getting back at men. We need to teach people their religion, to raise awareness and establish notions of respect for women among the young."

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