The Chhattisgarh High Court has declared that it is unconstitutional to ask a woman to take a virginity test as it violates the entitlements provided under the Article 21 of the Constitution of India which gives the inherent right to life and liberty with dignity. The Article 21 is the central concept of fundamental rights and if such a test is allowed, it would violate the principles of natural justice as well as prejudice the dignity and privacy of a woman.
The order was made by Justice Arvind Kumar Verma during a hearing of a criminal petition moved by a man who sought a virginity test for his wife. The man alleged the wife was having an extramarital relationship and challenged a ruling of a family court dated October 15, 2024 which had denied his interim request. The wife alleged that the husband was impotent and unwilling to have conjugal relations.
The High Court remarked that if the petitioner wished to prove the allegations related to his claimed impotency, it was open to him to go for a medical examination or to lead any other evidence. However, subjecting his wife to a virginity test could not be permitted simply to compensate for gaps in his evidence. The ruling, issued on January 9, was made public recently.
The court asserted that demanding a virginity test violated the constitutional rights of women, as Article 21 not only guarantees life and personal liberty but also upholds the right to dignity. The court clearly said no woman would ever be required to undergo such a test because it would be an encroachment upon her fundamental rights. Justice Verma emphasized that requiring a woman to establish her virginity encroaches upon her right to decency and dignity, and thus it is legally unacceptable.
Additionally, the court made it clear that the right of personal liberty under Article 21 is absolute and cannot be abrogated in any situation. It declared that consent for a virginity test would be a violation of basic human rights, basic human principles of justice, and even a woman's modesty. The principle of non-derogable rights was also emphasized, which means that such rights cannot be violated even in emergency situations.
In connecting with the over-all legal framework, the court noted that the counterclaims and the claims of both spouses deserved close legal attention and testing of evidence in due course. The High Court affirmed the order of the family court, finding the same to be neither illegal nor wrong, and held that no judicial error had been committed.
The pair had married on April 30, 2023, following Hindu traditions, and lived together in the house of the husband's family in Korba district. The wife later informed her family that her husband was impotent and refused to establish marital relations. Consequently, she filed an interim application on July 2, 2024, under Section 144 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), seeking a monthly maintenance allowance of Rs 20,000.
The husband asked for a virginity test in response to his wife's maintenance plea. He claimed that his wife had an improper relationship with his brother-in-law and that they never had a sexual relationship. But the Raigarh family court dismissed his application on October 15, 2024. He then moved to the High Court. The case is still pending, and the family court is examining the evidence.
(Input from various sources)
(Rehash/Sai Sindhuja K/MSM)
