‘Invasion of privacy’: Why Madhya Pradesh High Court blocked husband’s demand for wife’s virginity test

Justice Vivek Jain dismissed the husband’ plea against family court’s order.

“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,” the court held.

Background

• A divorce petition was filed by the husband against his wife on the ground of cruelty and in the petition it was pleaded that his wife had refused to enter into physical relationship with him.
• The wife, however, denied the allegations and accused the husband of dowry harassment, physical and mental cruelty, and acts of sodomy, while also refuting claims that she was mentally infirm.
• Before the family court, the husband argued that since the wife had accused him of sodomy, her medical examination was necessary to determine whether she had ever engaged in sexual intercourse or anal sex.
• The family court rejected this plea, observing that such an examination was unwarranted in a divorce petition based on cruelty.

Findings

• The wife refusing sexual relationship in itself is not a ground of divorce nor it is a ground to declare the marriage as void or voidable.
• If sodomy has been committed much prior to medical examination, then sodomy cannot be ascertained in medical examination being conducted many years after the alleged act of sodomy/anal intercourse and it would amount to nothing but invasion of privacy of the person and her humiliation.
• So far as the medical examination to ascertain whether the wife has ever entered into sexual relationship or not, is concerned, it is nothing but seeking virginity test of the wife in different words.
• 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.
• The prayer being made in the petition would be nothing but invasion of privacy of the wife, 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 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.