New Delhi: Underlining that subjecting a woman to a virginity test would be an invasion of her privacy, the Madhya Pradesh High Court has rejected the plea of a man who sought to get his wife medically examined on grounds that she refused to have sex with him.
Justice Vivek Jain said that subjecting a woman to medical examination would be an invasion of her privacy, while adding that it would not be relevant for the purpose of divorce, as refusal to enter into sexual intercourse is not a ground for divorce.
The court noted that although the husband could have used other evidence to prove his wife’s disinclination to enter into sexual relations, as he claimed in the divorce plea, ordering a virginity or ‘two-finger test’ of the wife would neither be relevant nor conclusive for the present case.
“The recent judicial trend is heavily against conducting a virginity test of a woman, and even otherwise, it is medically well settled that even after sexual intercourse, hymen may remain intact in some rare cases; and on the other hand, hymen may be damaged even without sexual intercourse,” it said, adding that a hymen could get damaged even without sex or any other physical activity.
The petitioner had challenged a 5 December order passed by the family court, which rejected his plea seeking a medical examination. In his plea, he had sought divorce on the ground of cruelty, saying that his wife refused to enter into a physical relationship. He also said that she was mentally infirm and ill.
The wife denied these allegations, saying that she was being subjected to sodomy and was being harassed due to dowry demands, physical and mental cruelty.
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How case unfolded
The husband, then, argued that the wife should be subjected to a medical examination to ascertain whether she has ever been in a sexual relationship, or whether she has indeed been subjected to sodomy, as said by her.
In October, the family court dismissed the plea saying that medical examination cannot be ordered in this case.
To support his arguments, the husband relied on the 2003 ruling by the Supreme Court in Sharda vs. Dharmpal, which held that in matrimonial matters, the right to privacy cannot be claimed by the other party, if medical examination is sought on matters which could form the grounds of divorce.
In October 2022, the Supreme Court, in State of Jharkhand vs Shailendra Kumar Rai, had denounced ‘two-finger test’ after a rape victim was subjected to undergo it by a medical board.
Slamming the practice, the top court said that this was not the first time that such a regressive and invasive test has been conducted in a case alleging rape and sexual assault.
“This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity,” it ruled, saying that such a pre-vaginum test must not be conducted as it is cruel, inhuman and degrading in nature, especially for victims of sexual assault or rape.
In this case, the court considered the Union health ministry’s guidelines which speak about the irrelevance of applying the ‘two-finger test’.
“It has been contained in the said guidelines that the status of hymen is irrelevant because hymen can be torn due to several reasons such as cycling, riding, or masturbation among other things,” the judge said, adding that even an intact hymen does not rule out sexual activity, nor does a torn hymen prove previous sexual activity.
Besides this, in SR Sephy vs CBI (2023), the court rejected a virginity test conducted on an accused as unconstitutional and violative of her right to life and dignity under Article 21 of the Constitution.
What court ruled
Emphasising that not entering into a sexual relationship cannot be a ground for divorce, the court said, “It is neither a ground for declaring the marriage as void or voidable under Sections 11 and 12 of the Hindu Marriage Act, 1955, nor a ground for divorce under Section 13.”
These provisions deal with void and voidable marriages, and enumerate the grounds for divorce, respectively. The grounds for divorce under the 1955 Act include adultery, cruelty, deserting one’s partner for a continuous period of two years at least, conversion to another religion, being of unsound mind and communicable diseases or sexually-transmitted diseases.
However, the court pointed out that impotence had not been alleged in this case, and if that were the scenario, then a medical examination could be done on the other party.
As for the allegations of sodomy, the judge said if the act was committed much before the medical examination, it would not be ascertained in the examination, and amount to “nothing but invasion of privacy of the person and her humiliation”.
Rejecting the plea for the virginity test, the court noted that the presence or absence of hymen would not be a determinative factor to infer whether there has been sex with the husband or not.
(Edited by Tony Rai)
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