In a significant ruling on January 21, Justice Vivek Jain of the Madhya Pradesh High Court turned down a husband’s request for a medical examination of his wife, which he had sought to prove her alleged refusal to engage in sexual relations. The Court astutely observed that the husband’s appeal was essentially a thinly veiled demand for a virginity test, despite being presented in different terminology. Furthermore, the Court underscored that the physical state of a woman’s hymen is not a reliable or valid piece of evidence for determining her sexual history, thereby dismissing the medical examination as both invasive and inconclusive for the legal matter at hand.
“The recent judicial trend is heavily against conducting virginity test of a woman and even otherwise 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 with the respondent ever or not,” the bench said.
In a legal battle centered on allegations of cruelty, a husband is seeking a divorce by claiming that his wife’s refusal to have a sexual relationship caused him mental distress. The wife has countered these claims with her own serious allegations, including harassment over dowry demands and accusations of sodomy. When the family court initially blocked the husband’s attempt to force a medical examination of his wife, he appealed to the High Court, arguing that the right to privacy should not apply when medical evidence is needed to prove grounds for divorce. However, the High Court rejected this logic, clarifying that the presence or absence of a sexual relationship is not a standalone reason to grant a divorce. The Court concluded that while the refusal of intimacy might be relevant to the broader question of whether the wife acted with cruelty, it does not provide a legal basis to mandate an invasive medical exam.
“Otherwise, it is neither a ground for declaring the marriage as void nor voidable under Sections 11 and 12 of the Hindu Marriage Act, 1955, nor a ground of divorce under Section 13. Impotence has not been alleged on the other party so that it would have necessitated medical examination of the other party,” the Court added.
The Court further emphasized that medical examinations are entirely futile for proving allegations of sodomy, as such acts cannot be clinically ascertained years after they supposedly occurred. Subjecting a woman to these procedures under such circumstances was described by the Court as nothing more than a blatant invasion of privacy and an act of humiliation. Highlighting broader legal precedents, the Court noted that the Supreme Court has strongly condemned the practice of virginity testing, specifically citing the “two-finger test” as an irrelevant and regressive procedure that has no place in modern jurisprudence.
“Looking to the aforesaid medical guidelines issued by the Ministry of Health and Family Welfare, which have been considered by the Hon’ble Supreme Court in the aforesaid judgement and ultimately the Hon’ble Supreme Court deprecated the practice of conducting two-finger test or virginity test, therefore, the prayer being made in the present petition would be nothing but invasion on privacy of the respondent, 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 High Court said.
Consequently, the Court found no merit in the husband’s request to mandate a medical examination for his wife, ruling that such a test is irrelevant to the divorce proceedings. The judgment clarified that the simple refusal to engage in sexual intercourse does not, on its own, constitute a legal ground for dissolving a marriage. While the husband is still permitted to present other forms of evidence to prove his wife’s alleged disinclination toward intimacy as part of his cruelty claim, the Court maintained that an invasive medical procedure is not a valid or necessary tool for establishing those facts.
“Virginity test or “two-finger test” of the wife would neither be relevant nor be conclusive for the purposes of the divorce petition. It would be nothing but invasion of privacy,” the Court said while dismissing the plea.
Legal representation for the husband was provided by Advocate Mohd Aadil Usmani.
