Delhi: High Court declares virginity test unconstitutional,  sexist and a violation of her right to honour

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New Delhi : The Delhi High Court on Tuesday gave an important verdict on the virginity test of a female accused. The court said that conducting virginity test of any woman is unconstitutional, sexist and a violation of her right to honour. Such a test is extremely inhumane for any woman or girl. There is no legal procedure that provides for virginity test. Justice Swarnakanta Sharma of Delhi High Court has passed this order on the petition of Sister Sefi in Sister Abhaya Death Case in Kerala.

In fact, Sister Sefi had sought to declare her virginity test unconstitutional in a criminal case in the petition. Sister Abhaya died in 1992 under mysterious circumstances in Kottayam, Kerala. Sister Abhaya’s dead body was found in the well. In this case, a trial court in Kerala had sentenced Father Thomas Kottur and Sister Safi to life imprisonment in December 2020. Was convicted for the murder of Sister Abhaya in Kottayam and sentenced to life imprisonment. However, an appeal against the lower court order is pending in the Kerala High Court.

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Petitioner Sister Sefi had alleged before the High Court that virginity test was forcibly conducted by the Central Bureau of Investigation (CBI) in 2008 on the pretext of the agency’s probe and the results were leaked to prove her case. Sister Sefi’s plea was opposed by the CBI. It was argued by the CBI that it was well within its power to conduct the medical examination and that the examination was necessary for the investigation of the murder case. The Court observed that when it was not examining whether the test was necessary for the investigation or not, it was infringing on its right to test the accused on the pretext of finding out the truth. The court said that conducting virginity test on the pretext of accessing the truth about the allegations against her was violative of her right enshrined in Article 21.

What did the court say on virginity test?

Declaring the virginity test of the accused as unconstitutional, Justice Swarnakanta Sharma told this test against the dignity of the woman. Justice Swarnakanta Sharma said that it is declared that the test of virginity of an accused female prisoner under investigation or in police custody is unconstitutional and violative of Article 21 of the Constitution which includes the right to dignity. Therefore, this Court is of the view that this test is sexist and violative of the human right to dignity of the woman accused as well, if she is subjected to such a test while in custody.

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The Court emphasized that the two-finger test or virginity test on female sexual assault victims has already been held by the Supreme Court to be violative of their right to honour, integrity and privacy. The concept of custodial dignity of a woman includes her right to live with dignity even while in police custody and conducting virginity test on her violates not only her physical integrity but also her psychological integrity. Instead of becoming a scientific or medical test, virginity test is now becoming a symbol of a woman’s purity. Virginity test is a type of physical assault. Such tests give a feeling of being humiliated.

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