Virginity Test is Unconstitutional and Violative of Article 21: Chhattisgarh High Court

Rejects Husband's Demand for Wife's Virginity Test in Maintenance Case - Right to Dignity is Non-Negotiable — Chhattisgarh High Court Holds Virginity Test Violates - Fundamental Rights of Women. In a crucial decision Chhattisgarh High Court rejected a husband's plea seeking to subject his wife to a virginity test to rebut allegations of impotence leveled against him. Justice Arvind Kumar Verma, while dismissing the criminal revision, categorically held that, “No woman can be forced to conduct her virginity test. It is the violation of the fundamental right guaranteed under Article 21.”  

The husband had filed the criminal revision against the order of the Family Court, Raigarh, which had dismissed his application seeking a virginity test of the wife in the course of proceedings under Section 144 of BNSS, 2023, where the wife was seeking interim maintenance. The marital discord arose shortly after the marriage on 30.04.2023, when the wife allegedly accused the husband of being impotent and refused to cohabit. In response, the husband accused the wife of having an illicit relationship and sought a virginity test to substantiate his claim.

 The Court noted, “If the petitioner wants to prove that the allegations imposed upon him by the respondent/wife that he is impotent is baseless, then, he can undergo the concerned medical test or he can produce any other evidence in this relevant connection. He cannot possibly be permitted to subject the wife to undergo her virginity test.”  

Citing the authoritative precedent of the Supreme Court in State of Jharkhand vs. Shailendra Kumar Rai [(2022) 14 SCC 299], the Court reiterated that, “Any person who conducts the ‘two-finger test’ or per vaginum examination (while examining a person alleged to have been subjected to sexual assault) in contravention of the directions of this

Court shall be guilty of misconduct.” The Court also relied on the judgment of the Delhi High Court in Sr. Sephy vs. CBI & Ors. (2023), which had categorically declared, “The virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is unconstitutional and in violation of Article 21 of the Constitution which includes the right to dignity.”  

Justice Verma observed, “Article 21 of the Constitution not only guarantees the right of life and personal liberty but also the right to live with dignity, which is crucial for women.” He underlined that “the right of personal liberty enshrined under Article 21 of the Constitution of India are non-derogable rights and cannot be tinkered with in any manner.”

Refusing to permit the husband to fill gaps in his case by resorting to unconstitutional practices, the Court held, “Granting 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 Court noted that all allegations raised by both parties could only be decided based on proper evidence, not through invasive, unconstitutional means.  

The Court concluded, “It is a basic right of a female to be treated with decency and proper dignity and virginity test is a violation of it.” Finding no error in the Family Court's order, the Criminal Revision was dismissed.  

Date of Decision: January 9, 2025