Whether the victim is promiscuous is an irrelevant issue altogether in a case of rape
High Court of Delhi, on February 7, 2023, ruled that conducting a forced Two-Finger-Test (TFT), to check the virginity of Sister Sephy, convicted of killing Sister Abhaya in Kerala in 1992, was unconstitutional, asserting that the intrusive procedure is inhuman and an affront to human dignity.
Sister Sephy, a Christian nun had moved the court in 2009, contending that the Central Bureau of Investigation (CBI) had conducted the infamous virginity test in November 2008, 16 years after the crime against her consent, just to humiliate her in custody. She also contended that the CBI spread a false and fabricated story to the media saying that she underwent ‘hymenoplasty’ to repair a broken hymen, even though the procedure was not available in India, and neither she has a passport to travel abroad.
Deciding on Sister Sephy’s plea against the two-finger test conducted in 2008, the Bench of Justice Swarna Kanta Sharma held that “the test is extremely traumatic for a victim of sexual assault as well as upon any other woman in custody and is bound to have devastating effect on the psychological as well as physical health of the person.”
The court further said, “The virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is declared unconstitutional and in violation of Article 21 of the Constitution, which includes the right to dignity of an individual, cannot be resorted to by the State and the same shall be in teeth of the scheme of Indian Constitution and the right to life enshrined under Article 21.”
Even the neighbouring country Pakistan, despite
having a fractured judicial system, did a say with the
two-finger test in Sadaf Aziz Vs Federation of Pakistan, albeit half-heartedly as the restriction is limited in the province of Punjab. Medical Jurisprudence embraces all questions which affect the civil or social rights of individuals and injuries to the person and brings the medical practitioner into contact with the law. Virginity test has so far been the medico-legal procedure. The question as to whether a woman is a virgin (virgo intacta) arises in cases of nullity of marriage, divorce, defamation and rape.
Negating this theory, even earlier in Lillu Vs State of Haryana (2013) 14 SCC 643, the Supreme Court had held, "..... rape survivors are entitled to legal recourse that does not retraumatise them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivours of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.``
Similar sentiments were expressed by the Supreme Court in State of Uttar Pradesh Vs Munshi, (2008) 9 SCC 390; wherein, it expressed its anguish and held that even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question.....Even if the victim had lost her virginity earlier, it can certainly not give a licence to any person to rape her.
Whether the victim is promiscuous is an irrelevant issue altogether in a case of rape.
In Rafique Vs the State of Uttar Pradesh, Supreme Court declared that the lack of damage marks does not always imply that the sexual act was carried out with the female's permission.
Similarly, in Ranjit Hazarika Vs the State of Assam (1998), Supreme Court held that just because the victim had no visible injuries and the hymen was intact, it does not follow that there was no coitus. The court decided as; "The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix .
To constitute the offences of rape, penetration, however slight, is sufficient."
In State of Jharkhand Vs Shailendra Kumar Rai, 2022, a Bench of Justices DY Chandrachud and Hema Kohli, hearing a criminal appeal ruled that the intrusive and upsetting procedure should be removed from the medical study materials and that anyone found to have performed such a test should be severely punished."
As there have been numerous rulings of the courts specifying that the prevalent practice of virginity test to ascertain hymen-intact has been proved irrelevant and medically wrong beyond doubt, the practice has rightly been banned.
As such, the medical fraternity and the police must follow the directions of the courts by not conducting a two-finger test on women in custody or otherwise to avoid contempt proceedings.
(The writer is a legal journalist and author. The views expressed are personal)
