THE VIRGINITY TEST

A virginity test is the practice and process of

determining whether a woman (or girl) is a
virgin; i.e., to determine that she has never
engaged in, or been subjected to, vaginal
intercourse.
The test typically involves a check for the
presence of an intact hymen, typically on the
flawed assumption that it can only be, and will
always be, torn as a result of vaginal
intercourse.
Virginity testing is widely considered controversial,
because of its implications for the tested women (and
girls), as it is viewed as unethical, and because a
number of such tests are widely considered to be
unscientific.
In October 2018, the UN Human Rights, UN Women
and the World Health Organization (WHO) called for
the ban of virginity testing as it is a painful,
humiliating and a traumatic practice that constitutes
violence against women.
 JUSTICE VERMA COMMITTEE
After the 2013 Justice Verma Committee report on
amendments to criminal law for a faster trial, and
enhanced punishment in sexual assault cases, the
Union Health Ministry brought out detailed guidelines
for the medical examination of victims of sexual
assault in early 2014.
According to the guidelines ‘two-finger test’, must not
be conducted for establishing rape/sexual violence.
The guidelines state that a rape victim’s consent (or
her guardian’s, if she is minor/mentally disabled) is
necessary for any medical examination. Even if the
consent is not provided, the victim cannot be denied
medical treatment.
 THE USE OF TEST ON SEXUAL
ASSAULT VICTIMS
This test involves a medical practitioner inserting
two fingers into the vagina of a rape survivor in
an attempt to determine if the hymen is broken,
as well as to “test the laxity of the vagina”. The
test is often used to declare rape survivors as
“habituated to sex”.
The medical evidence of past intercourse is used
to cast doubt on the rape allegation, either to
suggest a survivor lied about the rape, to imply
that the rape wasn’t harmful, or to suggest the
moral impropriety of the survivor and therefore
her lack of entitlement to justice.
Narayanamma (Kum) v. State of Karnataka & Ors.
(1994) 5 SCC 728

The Court held that fact of admission of two fingers

and the hymen rupture does not give a clear
indication that prosecutrix is habitual to sexual
intercourse. The doctor has to opine as to whether
the hymen stood ruptured much earlier or carried an
old tear.
The factum of admission of two fingers could not be
held adverse to the prosecutrix, as it would also
depend upon the size of the fingers inserted. The
doctor must give his clear opinion as to whether it
was painful and bleeding on touch, for the reason
that such conditions obviously relate to the hymen.
 State of Punjab v. Ramdev Singh
AIR 2004 SC 1290

Supreme Court dealt with the issue and held that rape is
violative of victim’s fundamental right under Article 21
of the Constitution. So, the courts should deal with such
cases sternly and severely.
Sexual violence, apart from being a dehumanizing act, is
an unlawful intrusion on the right of privacy and sanctity
of a woman. It is a serious blow to her supreme honour
and offends her self-esteem and dignity as well. It
degrades and humiliates the victim and where the victim
is a helpless innocent child or a minor, it leaves behind a
traumatic experience. A rapist not only causes physical
injuries, but leaves behind a scar on the most cherished
position of a woman, i.e. her dignity, honour, reputation
and chastity.
Rape is not only an offence against the person of a
woman, rather a crime against the entire society. It is a
crime against basic human rights and also violates the
most cherished fundamental right guaranteed under
Article 21 of the Constitution.
 State of Uttar Pradesh v. Munshi
AIR 2009 SC 370

The court has expressed its anguish and held that even if the
victim of rape was previously accustomed to sexual
intercourse, it cannot be the determinative question. On the
contrary, the question still remains as to whether the accused
committed rape on the victim on the occasion complained of.
Even if the victim had lost her virginity earlier, it can certainly
not give a licence to any person to rape her. It is the accused
who was on trial and not the victim. So as to whether the
victim is of a promiscuous character is totally an irrelevant
issue altogether in a case of rape. Even a woman of easy virtue
has a right to refuse to submit herself to sexual intercourse to
anyone and everyone, because she is not a vulnerable object
or prey for being sexually assaulted by anyone and everyone.
 Narender Kumar v. State (NCT of Delhi)
AIR 2012 SC 2281

Apex Court dealt with a case where the allegation was that the
victim of rape herself was an unchaste woman, and a woman of
easy virtue. The court held that so far as the prosecutrix is
concerned, mere statement of prosecutrix herself is enough to
record a conviction, when her evidence is read in its totality and
found to be worth reliance. The incident in itself causes a great
distress and humiliation to the victim though, undoubtedly a false
allegation of rape can cause equal distress, humiliation and damage
to the accused as well.
The Court further held as under:
“Even in cases where there is some material to show that the victim
was habituated to sexual intercourse, no inference of the victim
being a woman of “easy virtues” or a woman of “loose moral
character” can be drawn. Such a woman has a right to protect her
dignity and cannot be subjected to rape only for that reason. She
has a right to refuse to submit herself to sexual intercourse to
anyone and everyone because she is not a vulnerable object or prey
for being sexually assaulted by anyone and everyone.
Merely because a woman is of easy virtue, her evidence cannot be
discarded on that ground alone rather it is to be cautiously
appreciated.
In view of the provisions of Sections 53 and 54 of the Evidence Act,
1872, unless the character of the prosecutrix itself is in issue, her
character is not a relevant factor to be taken into consideration at
all”.
 Lillu @ Rajesh and Anr v. State of Haryana
AIR 2013 SC 1784

The case that banned two-finger test

In light of the International Covenant on Economic, Social, and
Cultural Rights of 1966 and the United Nations Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of
Power in 1985, rape survivors are entitled to legal recourse that
avoids retraumatizing them or violating their physical and
mental integrity and dignity.
They are also entitled to medical procedures conducted in a
manner that respects their right to consent. Medical procedures
should not be carried out in a way that constitutes cruel,
inhuman, or degrading treatment, and the preservation of health
should be of paramount consideration when addressing gender-
based violence.
The State is under an obligation to provide such services to
survivors of sexual violence, taking proper measures to ensure
their safety and preventing arbitrary or unlawful interference
with their privacy.
Consequently, considering the aforementioned principles, it is
clear that the two-finger test and its interpretation infringe upon
the rights of rape survivors to privacy, physical and mental
integrity, and dignity. Therefore, this test, even if the report is
affirmative, cannot automatically give rise to a presumption of
consent.
 STATUS POST 2013 JUDGEMENT
State of Jharkhand v. Shailendra Kumar Rai
2022 SCC OnLine SC 1494
Any person who conducts the “two-finger test” or per vaginum
examination (while examining a person alleged to have been
subjected to a sexual assault) in contravention of the directions
of this Court shall be guilty of misconduct.

Further the Apex Court also issued directions for the Union
Government as well as the State Governments to:
1. Ensure that the guidelines formulated by the Ministry of
Health and Family Welfare are circulated to all government
and private hospitals;
2. Conduct workshops for health providers to communicate the
appropriate procedure to be adopted while examining
survivors of sexual assault and rape; and
3. Review the curriculum in medical schools with a view to
ensuring that the “two-finger test” or per vaginum
examination is not prescribed as one of the procedures to be
adopted while examining survivors of sexual assault and rape
 IMPACT OF INDIAN JUDGEMENT IN
PAKISTAN
Atif Zareef v. The State
2021 SCC Online Pak SC 1
On 4 January 2021, a three-judge bench of the Supreme Court of
Pakistan pronounced a significant judgment. Citing Indian
precedent from the State of Gujrat v. Rameshchandra Panchal
(2020), ruled that a two-finger test performed to confirm the
virginity of a survivor in cases of rape and sexual assault as
unconstitutional. The Court also emphasized that such tests have
no scientific or medical basis and are an insult to survivors’
dignity.
It noted that such a test is discriminatory and violates the right
to life and human rights enshrined in Articles 9 and 14 of
Pakistan’s constitution.
The Court declared that the “two-finger” or “virginity test”,
administered on rape survivors to determine their sexual past, is
unconstitutional. This blog seeks to analyze the significance of
this decision.
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