The Madhya Pradesh High Court on 21st January called out a husband who sought a virginity test of his wife in the garb of a medical examination, claiming that she refused a sexual relationship with him. A single bench of Justice Vivek Jain, who was hearing a divorce plea, dismissed the plea of the husband. Justice Jain observed that such an examination would be violative of the privacy of the wife and was irrelevant to the divorce plea, as the refusal to have sexual intercourse is not a ground of divorce under the Hindu Marriage Act, 1955.
“…this Court does not find any substance in the plea made by the petitioner/husband to subject the respondent/wife to medical examination as the said examination would be nothing but a virginity test which would be an invasion of privacy of the individual and is not relevant for the purpose of divorce as refusal to enter into sexual intercourse in itself is not a ground of divorce and the petitioner can adduce other evidence to prove disinclination of the wife to enter into sexual relations, as alleged in the divorce petition and virginity test or “two-finger test” of the wife would neither be relevant nor be conclusive for the purposes of the divorce petition. It would be nothing but an invasion of privacy,” the judge stated.
“… it is neither a ground for declaring the marriage as void nor voidable under Sections 11 and 12 of the Hindu Marriage Act, 1955, nor a ground of divorce under Section 13. Impotence has not been alleged on the other party, so that it would have necessitated medical examination of the other party,” the judge added.
Virginity test unconstitutional as well as unreliable: High Court
The High Court said that the virginity test was not only unconstitutional but was also unreliable by medical standards for ascertaining virginity. “The recent judicial trend is heavily against conducting 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 other hand, hymen may be damaged even without sexual intercourse upon any other physical activity and, therefore, presence or absence of hymen, would not be a determinative factor to infer that whether there has been sexual intercourse with the respondent ever or not,” the High Court said.
The husband was seeking a divorce on the grounds of cruelty, claiming that his wife’s refusal to have sexual intercourse with him amounted to cruelty. On the other hand, his wife accused him of sodomy and alleged that she was being harassed for dowry. The husband’s plea was declined by the family court last month, after which he moved to the High Court. His lawyer contended that, in matrimonial matters, if a medical examination is sought in connection with the grounds of divorce, the right to privacy cannot be claimed. However, the High Court rejected the husband’s argument and held that practice of conducting two-finger test or virginity test would be nothing but invasion of privacy.
“Looking to the aforesaid medical guidelines issued by the Ministry of Health and Family Welfare, which have been considered by the Hon’ble Supreme Court in the aforesaid judgement and ultimately the Hon’ble Supreme Court deprecated the practice of conducting two-finger test or virginity test, therefore, the prayer being made in the present petition would be nothing but invasion on privacy of the respondent, which otherwise also is not a direct ground to seek divorce, and not essential to adjudicate on the issues arising in the present case,” the High Court noted.
