The Virginity Test Practice in India: A Violation of Women's Rights, Assignments of Law

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A Virginity Test in India: Stigma on Society

Madhuri Tulshiram Gangurde

ABSTRACT

In India women having a very respectful status like goddesses but this is the sad reality that on the other side women have been subjected to cruelty, violence, and discrimination by our society. One of the most humiliating forms of violence is the virginity test. A virginity test is a physical examination for finding ruptures in a woman’s hymen and then determining whether the woman is still ‘a virgin’ or not. Virginity is used as a parameter for assessing her character. The paper focuses on the social and legal aspects regarding the virginity test practice in India conducted by different communities and medical experts. The paper highlights the steps taken by various social actions, constitutional remedies, and judicial pronouncements to uphold the dignity of women against the virginity test practices.

married couple on their wedding first night. Before going for test elders confirm that newly married bride is not carrying with her pointed instrument or knife-like instrument so that she can do injury to herself for showing bloodstains. The next morning groom has to show a white bed sheet in front of all elders and Panchas. Then Panchas ask to groom in very derogatory terms that ‘is your good is true’? If there is a bloodstain on the bedsheet groom says ‘True’ and if there is no bloodstain the good is declared as ‘false’. If there is no bloodstain on the bedsheet it presumed that the girl has engaged in premarital sexual relationships.^4 Not to pass this test will result in serious consequences like boycott from society, heavy fines, physical punishment, and torture, and many more.

TWO FINGERS TEST

Virginity testing is also known as the two-finger test mostly conducted by medical practitioners refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is proof of her being a virgin.^5 Furthermore, the practice is a violation of the victim’s human rights and is associated with both immediate and long-term consequences that are detrimental to her physical, psychological, and social well-being. The harmful and henneries practice of virginity testing is a social, cultural, and political issue, and its elimination will require a comprehensive societal response supported by the public health community and health professionals.^6

The Maharashtra University of Health Sciences (MUHS) has approved the removal of the topic ‘signs of virginity’ from Forensic Medicine and Toxicology subject for second-year medical students from their academic year syllabus. This means that the controversial ‘virginity test’, or ‘two-finger test’ would no longer be a part of the medical syllabus for students in the future. 7 A curriculum panel of MUHS unanimously approved the decision following a petition that 'signs of virginity' had no scientific basis, and did not aid in a sexual assault investigation as well.

(^4) www.asiatimes.com/2019/ (^5) https://timesofindia.indiatimes.com (^6) Eliminating virginity testing: an interagency statement. Geneva: World Health Organization; 2018. BYNC-SA 3.0 IGO. WHO reference number: WHO/RHR/18.15 7 news/india/2019/05/08/maharashtra

STOP V RITUAL MOVEMENT.

The fight against v ritual begun with a new generation of young, educated Kanjarbhats who dare to speak out against the virginity test and rigid caste panchayats. Many People as a social activist also oppose the virginity test ritual as a character test of the bride. This humiliating virginity test ritual is very unscientific and unethical because women do not necessarily bleed when they have sex for the first time. Activists who support Stop the V-Ritual have faced social boycott situation. This is a harsh reality that no young woman or couple from the Kanjarbhat community has filed a police complaint against the virginity test ritual so far. According to Stop the V-Ritual activists, this is partly why it has been so difficult to take legal action against the virginity tests and the caste panchayats^8. Now days so many young newly married couples from the Kanjarbhat community oppose the virginity test ritual. A group of youths hailing from the Kanjarbhat community have decided to join forces and protest against unethical and unlawful practices employed by the caste panchayat – such as taking large sums of money for giving their approval to a couple looking to get married and carrying out a ‘virginity test’ on the bride on the first night of her marriage^9 The move to challenge these ‘traditional’ practices with the help of technology using the social connection, Stop V- ritual activist siblings Vivek Tamaichekar and Priyanka Tamaichikar have created a group and added people in the group through social media. This young activist group is working on various footings for social awareness and abolishing the practice of V- ritual.

VIRGINITY TEST AND RELATED SOCIAL NORM.

The value of a woman’s virginity is deep-rooted in some societies. Virginity testing” has no scientific or clinical basis. No examination can prove a girl or woman has had sex – and the appearance of girl’s or woman’s hymen cannot prove whether they have had sexual intercourse, or are sexually active or not. 10 There is no such particular examination to determine that woman is a “virgin,” or not but still “virginity testing” occurs. Virginity testing is a practice that amounts to a huge violation of human rights by major groups. Most grooms in India accepting a virgin brides only. Virginity remains a big fascination in India where virginity is directly connected to purity, good reputation, character, and the correct upbringing of girls. But this virginity mandate isn’t applicable for boys. Sex before marriage among boys is maybe a casual thing, but for a girl, it is something that can cost so much of harm to her honor and dignity because it is considered as a girl is born with a “sealed”

(^8) https://scroll.in/article/ (^9) Indian express hequint.com/news/india (^10) https://www.who.int/reproductivehealth

term privacy is nowhere defined in the Constitution and is subject to judicial interpretation, which has made it a fundamental right within Article 21. Privacy includes physical noninterference, bodily integrity, psychological freedom, and confidentiality.^14

Virginity test leads to a violation of Art 14 and Art 15 of the Indian Constitution. Art 14 stated Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth^15 and Art 15 stated as Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth^16 this Golden Triangle of Fundamental Rights gives assurance to our very existence without which we cannot live as a human being and includes all those aspects of life, which go to make a man’s life meaningful, complete, and worth living.

JUDICIAL PRONOUNCEMENT RELATED TO VIRGINITY TESTS.

The courts in the case of R. Rajagopal v. State of Tamil Nadu and People’s Union for Civil Liberties v. Union of India^17 interpreted privacy as essential to life and is a part of fundamental rights guaranteed under Article 21, hence privacy is a right to be alone or a state of non-interfere without any justification by anyone. However, the question stands as to what if this individual right comes in conflict with the rights of an institution like marriage. The lawmakers and interpreters have tried to balance both sides.

Earlier only a penile-vaginal penetration against the woman’s consent constituted rape. After the 2013 amendments in criminal law, the definition of rape has been broadened considerably to include all sorts of penetrative violations of a female’s anatomy. Thus two-finger test would also amount to rape, unless it is covered under exception 1 to Section 375 IPC, which declares that, “A medical procedure or intervention shall not constitute rape.”

In the landmark case of Lilu @ Rajesh and Anr v. State of Haryana (2013)^18 , the Supreme Court ruled that the two-finger test is unconstitutional. It violates the right of rape survivors to privacy,

(^14) http://www.thehindu.com/news/national/the-lowdown-on-the-right-to-privacy/article19386366.ece/amp. (^15) Article 14 in The Constitution Of India (^16) Article 15 in The Constitution Of India (^17) R. Rajgopal v. State of Tamil Nadu and People’s Union for Civil Liberties v. Union of India [2003] AIR SC 2363 (^18) Lillu v. State of Haryana, (2013) 14 SCC 643.

physical and mental integrity, and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to the presumption of consent. In the view of International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not traumatize 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 survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.

In the case of Surjit Singh Thind v. Kanwaljit Kaur^19 , the husband wanted to present the virginity test of his wife as she was demanding divorce on the ground of him being impotent. The court rejected the demand of the husband and opined that asking a woman to give her virginity test is volatile to right to life with dignity and also her privacy under Article 21 of the Indian Constitution.

In another landmark case of Sr. Sephy v. Union of India on 1 January 2009^20

On the facts of this case, in my view, a virginity test was unnecessary. It was unfortunate that the third accused was subjected to such ridicule, which does not serve any purpose, other than attempting to throw mud on a nun in public. It is even more unfortunate that the private parts of a nun are made to be discussed in public, without serving any purpose for the case. The virginity test has helped only to In addition to statutory protections, the Supreme Court has recognized an intrusion into the Right to Privacy in cases of sexual assault in judgments of the post

• in the Kharak Singh era. In the case of State of Karnataka versus Krishnappa^21 , in which the Supreme Court held that "sexual violence apart from being a dehumanizing act is an unlawful intrusion of the Right to Privacy and sanctity of a female". In the State of Maharashtra versus

(^19) Surjit Singh Thind v. Kanwaljit Kaur AIR 2003 P H 353. (^20) Sr. Sephy vs Union Of India on 1January, 2009J(1) KLT 126, 2009 (1) ILR(Ker) 124 (^21) State of Karnataka versus Krishnappa ILR 1994 KAR 89, 1993 (4) KarLJ 680.