By Matters India Reporter
New Delhi, Feb 8, 2023: The Delhi High court has declared a virginity test conducted on a Catholic nun as part of a probe into the murder case as “unconstitutional.”
“The virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is declared unconstitutional and in violation of Article 21 of the Constitution which includes right to dignity,” a single bench of Justice Swarana Kanti Sharma said on February 7.
The petitioner, Sister Sephy, was convicted in the murder of Sister Abhaya, a 19-year-old junior nun on March 27, 1992. He had moved the High Court in 2009 challenging the Central Bureau of Investigation for subjecting her to the virginity test during the probe a year earlier.
The young nun’s body was found in the well of St. Pius Convent in Kerala’s Kottayam town and some Church officials termed her death as a case of suicide.
The Delhi court, however, has refused to grant her relief such as compensation and action against the officials for subjecting her to the illegal test.
The Delhi court’s verdict that came 15 years after the nun filed the petition said, “Virginity testing is a form of inhuman treatment and the same violates the principle of human dignity.”
“The test, being violative of right to dignity of an individual, cannot be resorted to by the state and the same shall be in teeth of the scheme of Indian Constitution and the right to life enshrined under Article 21,” it asserted.
Sister Sephy had also questioned the CBI for subjecting her to the test 16 years after the alleged crime had taken place and the need for virginity test to prove a murder case.
“Most shockingly, in the present case the virginity test was used to determine the truth of the accusation of murder against the petitioner,” the Delhi court said.
“Undoubtedly, the test in itself is extremely traumatic for a victim of sexual assault as well as upon any other women in custody and is bound to have devastating effect on the psychological as well as physical health of the person,” the court added.
A special Central Bureau of Investigation court in Kerala on December 23, 2020, sentenced Sister Sephy and Father Kottoor to life imprisonment for Sister Abhaya’s murder. The two are now out on bail and their appeals against the conviction are pending in the Kerala High Court.
The nun’s petition said the CBI had even come out with a false story of hymenoplasty surgery against her to hide its illegal act and leaked its report to the media to defame her.
The probe agency she said, her “hymen was subjected to hymenoplasty to conceal the evidence of rupture of hymen due to frequent sexual intercourse.”
Such a story was leaked to media when there no such medical facility available in Asia continent, she said.
The Delhi court questioned the gender bias in society said, “Strangely, though the word “virginity” may not have a definite scientific and medical definition, it has become a mark of purity of a woman.”
“Without an iota of doubt, the same rests on gender bias and society’s view and obsession with the false concept of virginity being equated with purity of a woman,” it added.
“Needless to say, it also amounts to controlling women’s body, their sexual behavior and the view that a woman with the hymen is pure and innocent,” the order said.
The court held the test sexist that violated human right to dignity “even of a female accused if she is subjected to such a test while being in custody.”
“Constitutional principles of fundamental rights that a person in custody of the authorities surrenders right to bodily integrity and submits to bodily intrusion for the prosecution to find evidence through its body,” it said.
“The feeling of being demeaned by such treatment in custody by bodily invasion through conducting a virginity test also brings forth the undesirable and (abhorrent) notion of differentiation on the basis of gender and stereotypes,” the high court asserted.
Conducting virginity test, the court added, “not only amounts to interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of a woman.”
The court directed the police and other investigation agencies to educate their officials about the unconstitutionality of virginity test so as to avoid such illegality noting that there was no law against it when she was subjected to it.