SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

3.6 Virginity testing/other forms of testing conditions placed on marriage (e.g.
HIV/STIs)
Although in practice, notions of virginity play a significant role in relation to marriage these
issues seldom play out within the legal system except in cases of sexual assault. 285 The issue
did arise in cases in Nepal and India however.
In Nepal, the right to privacy was given primacy in a case decided by the Supreme Court of
Nepal, which related to a property dispute. 286 In this case the lower court ordered a woman to
undergo a virginity test to determine if she was married with the reasoning that if the test had
revealed that the woman was not a virgin, she would not be entitled to any share of a partition
of property. She refused and appealed the case to the Supreme Court. The court invalidated
the lower court order, distinguishing between marriage and virginity and finding that the
genital examination would violate the woman’s right to privacy. It held that whether a person
did or did not have sex with a person of her choosing was a “matter of private conduct of the
person.”
In India, virginity testing in the context of marriage has arisen primarily in divorce cases. In
these matters, the Courts have examined the issue of whether they can direct a person to
undergo a medical exam including a virginity test. In Sharda v. Dharmpal, 287 the Supreme
Court, while determining whether they could direct a person alleged to be of unsound mind in
a divorce petition, laid down the principles that are followed in cases of virginity tests. The
primary issue before the Supreme Court in this matter was whether a direction by them to
undergo a medical examination would violate the right to privacy that is considered a part of
the right to life and personal liberty in Article 21 of the Indian Constitution. The court held
that the right to privacy is not an absolute right, particularly where the rights of two parties
clash. However, the court, it was held, is not allowed to order a roving inquiry and must have
sufficient materials before it to exercise its jurisdiction. The Supreme Court concluded that:
“1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing
of such an order by the court would not be in violation of the right to personal liberty under
Article 21 of the Indian Constitution. 3. However, the Court should exercise such a power if
the applicant has a strong prima facie case and there is sufficient material before the Court.
If despite the order of the court, the respondent refuses to submit himself to medical
examination, the court will be entitled to draw an adverse inference against him.”
These principles have been used by High Courts in cases related to virginity tests. In Surjit
Singh Thind v. Kanwaljit Kaur, 288 the Delhi High Court in a case where a woman had filed a
case for nullity of the marriage on the ground that it had never been consummated rejected
that the plea of the husband to have her subjected to a virginity test to prove she is not a
virgin. The court noted that the medical examination, “even if it does not prove her virginity
would not necessarily lead to the conclusion that the marriage with the husband-petitioner
has been consummated. It is trite to state that virginity is not the only proof of non-
285 Discussed in Chapter 5 on Violence
286
Annapurna Rana v Ambika Raja Laxmi Rana. The authors did not have access to the full text of the
judgment or a translation of the same. This information was obtained from an unpublished study and analysis on
sexuality and rights undertaken by the Forum for Women, Law & Development, which was made available to
the authors.
287 MANU/SC/0260/2003
288 MANU/PH/0848/2003
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