Wife Need Not Be Subjected To Virginity Test Merely Because She Sought Divorce On The Ground Of Non Consummation Of Marriage: Calcutta HC [Read Judgment]

The Calcutta High Court observed merely because the wife, in her divorce petition, made an allegation that the marriage was not consummated, she need not be subjected to virginity test.

Justice Sahidullah Munshi upheld a trial court order, which had upheld a wife's plea to conduct potency test of the husband and rejected the latter's plea seeking virginity test. In this case, the wife opposite pleaded in the suit that the marriage was not consummated because of the impotency of the husband and that the same was a void marriage. In response to this, the husband had filed an application seeking virginity test of the wife.

The High Court upheld the Trial Court observations based on a passage of a renowned author that "Virginity test is not a reliable indicator of a female having actually engaged in sexual intercourse because the tearing of the hymen may have been the result of an involuntarily sexual act". The court said:

"In my view also the contention raised by the husband that since the wife made an allegation that the marriage was not consummated she should be subjected to virginity test cannot be accepted, particularly, when it is undisputed that the marriage took place on 30th November, 2006. Therefore, I do not find any illegality and/or material irregularity in the impugned order. I do not also find any jurisdictional error on the part of the learned trial Court in rejecting petitioner's application for virginity test"

However, the bench set aside the order of the Trial Court which rejected husband's application for extending the date to enable him to appear before the Medical Board for the purpose of his potency test. 

The Punjab and Haryana High Court had also expressed a similar view in a 2015 judgment.It had observed that, to decide the main issue between the parties (divorce on the ground of non consummation of marriage), it is not necessary for the wife to have a virginity test, which in any case is not the only proof of non consummation of marriage.  The High Court, had also upheld the Trial Court view that medical examination of a women for virginity would violate her right of privacy enshrined under Article 21 of the Constitution.

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