The Madhya Pradesh High Court recently rejected a husband’s plea seeking medical examination of his wife to show that she had refused to have a sexual relationship with him.

By an order dated January 21, Justice Vivek Jain dismissed the husband’s appeal and noted that his plea for medical examination was nothing but a demand for the virginity test of the wife, albeit couched in different words.

The Court also observed that the state of the hymen of a woman cannot be used as evidence to decide whether a woman has ever had sexual intercourse.

“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 plea pending before a family court, the husband is seeking divorce from the wife on the grounds of cruelty. He has argued that her refusal to have sexual relationship with him amounted to cruelty. The wife, however, has alleged that ​​she was being harassed on account of dowry demand and also accused him of sodomy.

The family court last month refused to order any medical examination of the wife, considering that the divorce was being sought on grounds of cruelty. The husband then moved the High Court.

His counsel argued that in matrimonial matters, right to privacy cannot be claimed if medical examination is sought in connection with the grounds of divorce.

However, the High Court observed that the parties entering into a sexual relationship or not, is not a ground of divorce.

The fact may be relevant only for the limited purpose to determine whether the wife has committed cruelty upon the husband by refusing to enter into a sexual relationship, it added.

“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.

Further, the Court said that even sodomy cannot be ascertained in medical examinations years after the alleged act of anal intercourse.

It would amount to nothing but invasion of privacy and humiliation of the wife, the Court remarked. The Court also noted that the Supreme Court has heavily deprecated the practice of conducting virginity tests and found the two-finger test to be irrelevant.

“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.

Thus, the Court did not find any substance in the husband’s plea to subject his wife to medical examination. It ruled that such a test is not relevant for the purpose of divorce as refusal to enter into sexual intercourse in itself is not a ground of divorce.

It clarified that husband can adduce other evidence to prove disinclination of the wife to enter into sexual relations, as alleged in the divorce petition 

“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.

Advocate Mohd Aadil Usmani appeared for the husband.

[Read Judgment]