Jammu & Kashmir High Court
Ram Krishan vs Ramni Thappa on 10 February, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No. 46
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)
CRMC No.769/2018
IA No.1/2018
CrlM No.275/2019[1/2019]
Ram Krishan ....Petitioner(s)/Appellant(s)
Through :- Mr. Rahul Pant, Sr. Advocate with
Mr. Anirudh Sharma, Advocate.
V/s
Ramni Thappa ....Respondent(s)
Through :- Mr. Manohar Lal, Advocate.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
10.02.2022
1. Through the medium of instant petition, the petitioner has challenged order dated 16.10.2018 passed by learned Chief Judicial Magistrate, Kathua whereby learned Magistrate has dismissed the application of the petitioner seeking permission to get the virginity test of respondent conducted by the Medical Board.
2. Before coming to the instant petition, it would be necessary to give a brief background of the facts leading to filing of this petition.
3. It appears that the respondent has filed a petition under Section 488 of Jammu and Kashmir Cr.P.C against the petitioner, who happens to be her husband, claiming maintenance from him. In the petition, one of the grounds urged by respondent wife is that her husband i.e., the petitioner herein did not conduct physical relations with her and the marriage has never been consummated. Besides this, it is alleged in the petition that the petitioner 2 CRMC No.769/2018 husband and his family members have beaten up the respondent and thrown her out of her matrimonial house.
4. It appears that during the pendency of the aforesaid petition, the petitioner husband filed an application before the learned Chief Judicial Magistrate seeking permission to get the virginity test of respondent-wife conducted by a Board of Doctors. In the said application, the petitioner contended that as per the medical report obtained by him, he is a potent person and therefore the allegations made by the respondent-wife against him are absolutely false. On this ground, the petitioner sought a direction from the learned Magistrate to accord permission for conducting virginity test of respondent-wife for disproving the contention of the wife that the marriage was not consummated.
5. The learned Magistrate, after hearing the parties, vide the impugned order rejected the prayer of the petitioner husband on the ground that the virginity of a wife is wholly irrelevant to a litigation where a petitioner seeks maintenance on the ground of negligence of her husband to maintain her. Besides this, the learned Magistrate has observed that a woman cannot be subjected to virginity test as the same violates the right of her privacy enshrined under Article 21 of the Constitution.
6. I have heard learned counsel for the parties and perused the material available on record.
7. Learned counsel for the petitioner has contended that there is no harm in conducting the medical test of respondent and even if she does not want to undergo such a test, for which she cannot be forced, but at least on account of her refusal to undergo such a test, the Court can very well draw an adverse inference against her.
3 CRMC No.769/2018
8. So far as the argument advanced by learned senior counsel appearing for the petitioner is concerned, the same may be a valid argument in a case where a person is asked to undergo any other ordinary medical tests like DNA test for proving the paternity of a child or similar other medical tests but subjecting a woman to virginity test is clearly on a different footing. Virginity of a woman is extremely personal in nature. Asking a woman to undergo virginity test would be extremely insensitive to her right of privacy and no Court would extend any such direction as virginity tests are invasive, offensive, discriminatory and blatantly violative of dignity of a woman.
9. Even otherwise whether the respondent is a virgin or not is wholly irrelevant to the issue of grant of maintenance. The only question which is required to be considered by the Magistrate while determining the entitlement of a wife to maintenance is whether or not her husband has neglected or refused to maintain her. For the said purpose, the conducting of medical test for virginity of the wife is absolutely unnecessary.
10. The conducting of virginity test will not have any bearing upon the question whether or not the marriage between the petitioner and respondent has been consummated for the reason that status of hymen of a woman is irrelevant for determination of her virginity. According to the guidelines and protocols issued by the Ministry of Health and Family Welfare, Government of India, the status of hymen is irrelevant because hymen can be torn due to several reasons such as cycling, riding or masturbation among other things and an intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. These guidelines have been formulated by experts in the field of medical science, therefore, the same have to be accepted as opinion of experts on the subject. Thus, it can safely be stated that even if the respondent is asked 4 CRMC No.769/2018 to undergo virginity test the same may not lead us anywhere as it would not determine as to whether the marriage between the petitioner and the respondent has been consummated.
11. Apart from the above, the respondent in her petition under Section 488 Cr.P.C has only claimed that her husband has refused to have physical relations with her. She has nowhere stated that her husband is impotent. Thus, filing of application for conducting virginity test of respondent-wife by the petitioner is otherwise uncalled for.
12. For the foregoing reasons, I do not find any merit in this petition. The impugned order passed by learned trial Court is well reasoned and lucid. The same does not call for any interference. The petition is, accordingly, dismissed. It shall, however, be open to the petitioner to approach learned trial Magistrate by way of an appropriate application, seeking production of any other material evidence, that may be necessary for his defence to the petition under Section 488 Cr. P.C. (Sanjay Dhar) Judge Jammu:
10.02.2022 Surinder SURINDER KUMAR 2022.02.14 17:42 I attest to the accuracy and integrity of this document