'Woman can't be forced to undergo virginity test; violation of Article 21,' says Chhattisgarh High Court

The Chhattisgarh High Court on Monday ruled that a woman cannot be forced to undergo a virginity test as it violates Article 21 of the Constitution, which guarantees her fundamental right to protection of life and liberty, comprising the right to dignity. Calling Article 21 the “heart of fundamental rights”, the HC said allowing permission for a virginity test would be against the “fundamental rights, cardinal principles of natural justice and secret modesty of a female”, reported PTI.

What was the case?

This observation comes after Justice Arvind Kumar Verma heard a petition filed by a man who sought his wife's virginity test, alleging she was involved in an illicit relationship with another man, contesting a family court's order dated October 15, 2024 which refused the interim application.

According to Hindu rites, the duo got married on April 30, 2023 and stayed together at the man's family residence in Korba district. The woman allegedly told her family members that her husband was impotent and she declined to form a marital relationship or cohabit with him, the petitioner's counsel stated.

Under section 144 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), she registered an interim application on July 2 last year before the family court in Raigarh district, demanding maintenance of ₹20,000 from her husband. As a response, the petitioner demanded virginity test of his wife, claiming she was in an illicit relationship with her brother-in-law and their marriage was not consummated.

On October 15, 2024, the family court in Raigarh refused the husband's request after which he filed a criminal petition in the high court. However, the case is at evidence stage in the family court.

'Go through a medical test to prove impotent allegations baseless or produce evidence

The HC responded that the petitioner can go through a medical test or produce any other evidence to prove impotent allegations groundless. The HC order passed on January 9 was made available which said, “He cannot possibly be permitted to subject the wife to undergo her virginity test and fill up the lacuna in his evidence.”

"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 HC said.

Justice Verma added the virginity test is a violation of the basic right of women to be considered 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 her virginity test and fill up the lacuna in his evidence in this regard," the HC noted.

It observed that the both parties' allegations against each other are the subject matter of evidence and an inference can be made only after the 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 observed.

(With inputs from PTI)