Virginity Test: A Disgrace

Adv. Romy Chacko Adv. Romy Chacko
20 Feb 2023
International Organisations have also declared Virginity Testing as unscientific, harmful, painful, humiliating, traumatic and rooted in entrenched system of discrimination against women and girls.

Sr. Abhaya, a Christian nun and an inmate of Pious X Convent Hostel, Kottayam, Kerala was found dead in a well on 27.03.1992. The local police registered the case as ‘unnatural death’. The CBI which took over the investigation, in its final report submitted on 29.11.1996, narrated that “the materials/evidence collected during investigation do not conclusively establish beyond reasonable doubt as to whether Sr. Abhaya’s death is suicidal or homicidal”. 

Later, on behalf of the Kochi Unit of the CBI, Nanda Kumar Nair undertook the investigation from November 01, 2008. Sr. Sephy and two other accused were implicated for the offence of murder. The Prosecution version is that on 27.03.1992 Sr. Abhaya allegedly saw two priests and Sr. Sephy in a compromising position. Fearing exposure, the accused persons killed Sr. Abhaya.

Sr. Sephy was arrested on 19.11.2008. The prosecution was not able to produce any evidence to prove any meeting between the nun and the other accused at Pius X hostel on the fateful day or the alleged immoral relationship between them. However, in a bid to prove the motive attributed to the accused, CBI subjected the nun to virginity test on 25.11.2008 i.e., 16 years after the alleged incident took place. I do not know whether the investigating agency conducted any investigation if she had access to men between 27.3.1992 and 25.11.2008.

To the utter dismay of the CBI, the tests conducted by the doctors proved that the hymen of the complainant was found intact. As the result of the virginity test conducted on Sr. Sephy proved counter-productive, CBI officials, to save their face, fabricated a new story to the effect that Sr. Sephy had undergone surgery for suturing of hymen or “hymenoplasty” and released their version to the print and electronic media.

On the days that followed, the print and electronic media released the news of the virginity test conducted on Sr. Sephy and the CBI story of petitioner having undergone surgery for suturing of hymen. It is pertinent to point out that the above reports were made public by the CBI even before the result of the test was submitted before the Chief Judicial Magistrate Court on 02.12.2008. Later she was released on bail by the High Court of Kerala.

The Medico-Legal Case (MLC) filed by the respondent does not show that she had undergone hymenoplasty. On the contrary it states: 

“There is evidence of scarring to hymen which could be due to surgical interference. Hence, a definite opinion as to whether she had undergone penetration due to vaginal intercourse in the past cannot be stated. There is no evidence of having undergone anal intercourse in the past.”

The above report does not suggest that the victim was not a virgin or that she had undergone hymenoplasty. The inference that she had undergone hymenoplasty is solely based on the reference of scarring to hymen in the MLC. There was no other evidence to prove that she had undergone hymenoplasty. There is also no evidence of any  facility for hymenoplasty anywhere in India at the relevant time or that the accused had availed of it. Hence it has to be concluded that the story of hymenoplasty is nothing but an attempt to cover up the failure of the investigating agency to prove that she was not a virgin.

In fact, way back in 2009 itself, Justice Hema of Kerala High Court observed at the time of granting bail to the complainant/accused that the virginity test does not serve any purpose other than making an attempt to throw mud on a nun in public. 

Immediately after this, Sr. Sephy and the nuns from her congregation approached me seeking redressal of their grievances against the CBI. I was shocked by the physical and psychological harm that she suffered at the hands of the investigating agency and the general public. She was in a state of depression which cannot be described in words. She was not able to attend any function or travel in a public conveyance as she was made an object of public ridicule by the CBI. She was not allowed to live with basic human dignity guaranteed under the Constitution of India. Sr. Sephy was very particular that what happened to her should not happen to any other woman in future.

I filed a complaint before the National Human Rights Commission. The same was not entertained. Thereafter a writ petition was filed on behalf of the sister before Delhi High Court seeking a declaration that the virginity test administered on the sister was unconstitutional and to take appropriate action against the officials responsible for the same. The case passed through various judges over the period of 13 years before it was finally allowed by Justice Swaran Kant Sharma on 7th February 2023. 

During the pendency of trial proceedings accused No.2 Fr. Puthrukayil was discharged by the CBI Court on 7.3.2018 and the same was confirmed by the High Court of Kerala on 9.4.2019. As a result the alleged scene witnessed by Sr. Abhaya had to be altered during the trial.

It is shocking that a catholic nun was subjected to virginity test by the premier investigating agency of the country to prove her involvement in a murder case. Virginity is of prime importance to a catholic nun for her religious and personal life as she has to take a vow of chastity before being admitted to the religious order. 

The virginity test conducted on Sr. Sephy violated her right to live with basic human dignity, right to honour, reputation and privacy enshrined in Article 21 of the Constitution. It is not only an attack on her honour and reputation but also gross abuse of power by the investigating agency.  

International Organisations have also declared Virginity Testing as unscientific, harmful, painful, humiliating, traumatic and rooted in entrenched system of discrimination against women and girls. Recently an Interagency Statement based on various medico-legal literatures was published by 3 UN agencies i.e., World Health Organisation (WHO), United Nations Human Rights Office of the High Commissioner and UN Women. The Report provides that Virginity testing is unscientific, medically unnecessary and unreliable and that governments; health professionals and their associations; international, regional and national health agencies; and communities at large should take the initiative to ban virginity testing.

Neither the Cr.P.C. nor any other law empower the investigating agency to conduct virginity test on an accused. It is common sense that subjecting the accused to virginity test on 25.11.2008 could not have produced any evidence to prove that she was in a compromising position with the other accused on 25.03.1992 i.e.  the date of death of Sister Abhaya (motive attributed to the crime by the CBI).  

The law-makers did not include virginity test as a tool for investigation.  Medical test which does not come within the ambit of section 53 CR.P.C. cannot be administered by the investigating agency without the previous permission of the court. It is also well settled law that there must be sufficient materials before the court to permit parties to be subjected to medical tests. It is an admitted fact that the CBI did not obtain any permission from the Court for subjecting Sr. Sephy to virginity test possibly because there were no materials available to justify the same. 

Delhi High Court declared that virginity test conducted on a female detainee, accused under investigation or in custody whether judicial or police is unconstitutional and violative of Article 21 of the Constitution which includes right to dignity. It was further observed that virginity test amounts to interference with bodily integrity and psychological integrity of a woman and that it makes no difference whether it is conducted on a victim or an accused. The court held that the virginity test is sexist and it amounts to violation of human right to dignity.

The National Human Rights Commission was also directed to consider afresh the representation filed by Sr. Sephy regarding custodial torture for compensation once the criminal trial against her is over. 

After a long wait of 14 years, finally justice has been done to a catholic nun who was subjected to public ridicule and humiliation by the premier investigating agency of the country. 

(The writer is a noted Supreme Court Lawyer who argued the case of Sr Sephy, the petitioner, in the Delhi High Court)

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