The Chhattisgarh High Court has ruled that a woman cannot be forced to undergo a virginity test, stating that such a practice violates Article 21 of the Indian Constitution. The court emphasised that Article 21 guarantees the fundamental right to life and personal liberty, which includes the right to dignity.
The high court said granting permission for a virginity test would be against the fundamental rights, cardinal principles of natural justice and secret modesty of a female, emphasising that Article 21 is the "heart of fundamental rights".
What did the court say?
Justice Arvind Kumar Verma of the Chhattisgarh High Court made this observation while hearing a criminal petition filed by a man seeking a virginity test for his wife, accusing her of an illicit relationship with another man. He challenged a family court's October 15, 2024, order that had rejected his interim application. Meanwhile, the wife alleged that her husband was impotent and had refused to cohabit.
The HC said if the petitioner wants to prove that the allegations of impotency are baseless, he can undergo the concerned medical test or produce any other evidence. "He cannot possibly be permitted to subject the wife to undergo her virginity test and fill up the lacuna in his evidence".
The order passed on January 9 was made available recently.
The high court observed that the petitioner's demand for his wife's virginity test was unconstitutional, as it infringed upon Article 21 of the Constitution, which safeguards a woman's right to dignity.
"Article 21 of the Constitution of India not only guarantees the right to life and personal liberty but also the right to live with dignity, which is crucial for women.
"No woman can be forced to conduct her virginity test. It is a violation of fundamental rights guaranteed under Article 21. It has to be borne in mind that Article 21 is the 'heart of fundamental rights'," the high court stated.
Justice Verma further said that the virginity test is a violation of the basic right of women to be treated with decency and proper dignity.
"The right to personal liberty enshrined under Article 21 is non-derogable and cannot be tinkered with in any manner. The petitioner cannot possibly be permitted to subject the wife to undergo a virginity test and fill up the lacuna in his evidence in this regard.
"Be that as it may, but in any case, granting the permission for virginity test of the respondent would be against her fundamental rights, the cardinal principles of natural justice and secret modesty of a female," the high court noted.
Non-derogable human rights refer to rights that are absolute and may not be subject to any derogation, even in times of war or emergency.
The bench further observed that the allegations made by both parties against each other are the subject matter of evidence and a conclusion can be drawn only after evidence. "The High Court is of the considered opinion that the order impugned is neither illegal nor perverse and there is no judicial error committed by the trial court," it said.
What is the case?
The couple got married on April 30, 2023, following Hindu rituals and resided at the husband's family home in Korba district. According to the petitioner's counsel, the wife informed her family that her husband was impotent and refused to cohabit or establish a marital relationship with him.
Subsequently, on July 2, 2024, she filed an interim application under Section 144 of the Bharatiya Nagrik Suraksha Sanhita (BNSS) before the family court in Raigarh district, seeking a maintenance allowance of Rs 20,000 from her husband.
In response to the maintenance claim interim application, the petitioner sought a virginity test of his wife alleging that she was in an illicit relationship with her brother-in-law. He claimed the marriage was never consummated.
On October 15, 2024, the family court in Raigarh rejected the husband's request following which he filed a criminal petition in the High Court.
The case is currently at evidence stage in the family court.
(With PTI inputs)
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