April 19, 2024
Home » A CRITIQUE OF DISGUISED RE-RAPE
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This article has been written by Sarthak Bhatia, currently pursuing 3rd year law from UILS Chandigarh University.

Introduction

Patriarchy is a social evil that has not only resulted in discrimination against women in social outlook but has also subjected them to sexual discrimination. Men who consider themselves as the dominating gender needs chaste woman who has never had sexual intercourse with anyone else but her man. Male chastity has never been a question for the integrity of a man.

This very concept of chastity has created a question for female’s virginity. Different surreal ways to detect a female’s virginity have been used over the period of time. The virginity of a female is detected to check if the woman has had sexual intercourse or not. Two fingers test is one of such tests which has been used over the period of time. Such techniques have also been used to determine whether a rape victim is habituated to sexual intercourse or not.

What is two- Fingers test?

The doctor performs two fingers test by inserting two fingers into the victim’s vagina. This test aids in determining the victim’s laxity and sexual activity, or whether the victim is engaged in sexual activity or not. This test would assist in determining whether the hymen is broken. Insertion of one finger with strain into the vagina shows that the victim is a virgin whereas easy or smooth insertion of two fingers in the vagina shows that the female is habituated to sexual activity.

However, with the evolution of society, law becomes old and obsolete and needs rectification in order to remove the intricacies arising. Two fingers test being performed on rape victims is irrational and absurd. It is in derogation with the personal liberty of the woman violating article 21 and gives birth to inequality between a virgin female and a female who has had sexual intercourse in the past, thereby violating Article 14.

This fallacious concept is based on the patriarchal concept that sexually active woman cannot be raped. Protecting and comforting the victim who has been through such dreadful acts shall be the prime concern. Nevertheless, such tests can also be considered as a re- rape by the victim giving rise to dire consequences and also violating her right to privacy. The road to justice for such victims is bumpy and dreary, on to which this mortifying two fingers test only creates hurdles for the victim making it difficult raise voice against the wrongdoing.

This controversial approach has been applied in many cases wherein it has received a plethora of backlash from the victims who had to endure this archaic test.

A three-member committee headed by Chief Justice J.S. Verma was established in the wake of the terrible and horrifying “Nirbhaya Rape Case”[1] to offer suggestions about the evaluation of “rape” as an offence. The 657-page study advocated for changes to India’s criminal laws as well as opposed the invasive and degrading Two-Finger Test. Further, the Verma Commission laid down the guidelines that needed to be followed while medically examining the rape victims like the explanation of every step of the examination and its corresponding significance to the victim, the presence of same-sex trained health worker in a separate room with the victim, obtaining the consent of the victim for the procedure, showing the report and explaining the details of the same to the victim and also maintaining the confidentiality of  victim outside the court of law among others.

The Hon’ble court in the case of “State of UP v. Munshi” [2]stated that “whether the victim was habitually engaging in sexual activity cannot be a determinative matter since it does not relate to the question of consent.” It makes it quite obvious that just because a woman engages in sexual activity does not mean that she automatically gave her permission in that situation.

The accused in the case of “Lilu v. state of Haryana”[3] was found guilty by the session’s court of raping a young girl, who was around 14 years old. In his appeal, he said that she had consented and was used to having sex. She wasn’t a minor, he further argued. The two-finger test was used by the appellant to support his claims. The Two-Finger Test, on the other hand, was deemed unethical and unconstitutional by the respondents. The Hon’ble Supreme Court held the appellant guilty. It was concluded that the test unquestionably infringes the victim’s right to privacy and dignity. Furthermore, the issue of “habitual sexual intercourse[4] is not a determining element in rape proceedings.

TWO FINGERS TEST: A BLOW TO THE DIGNITY OF WOMEN

The Supreme Court in the landmark judgment of State of Jharkhand v. Shailendra Kumar Rai prohibited the two fingers test and laid down that anyone conducting such tests would be held guilty of misconduct.

It was also stated by the Hon’ble Chief justice of India Justice DY Chandrachud that “The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth – a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her”[5]

“The probative value of a woman’s testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.”[6]

“Whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case”[7]

The Hon’ble court in furtherance of it restored the conviction and stated that “Although the “two-finger test” in this case was conducted over a decade ago, it is a regrettable fact that it continues to be conducted even today”[8].

Conclusion –

Though India has a robust Constitution, which has granted equal rights to both men and women, yet those constitutional mandates are often dominated. Even after being granted with all the equal rights, women are somehow devoid of such rights

Women have been subjected to continuous violence in a plethora of ways since the inception of this society. Be it in any form like sexual assault, bodily violence or mental abuse, they have been bearing the brunt since the very start. The abovementioned judgement is an attempt to stop further inhumane torture at the hands of men in the garb of testing sexual abuse. It can also be said to be a milestone towards the composite and congenial journey providing amicable, safe and human friendly environment for women.

 This test was nothing but inhumane and unscientific procedure that attacks the right to privacy of a rape survivor. The presence of such conservative practices in the society has done nothing but create a rigid patriarchal mindset. Such mindset in the country would hamper the ethical as well as social development of the country. Moreover the presence of such practices would have only created hindrance for the rape survivors to raise their voices against the wrongdoers. And lastly when no voice is raised against such act it will persuade the offender to commit more such heinous acts. 


[1] Mukesh and Anr V. State for NCT Delhi AIR 2017 6 SCC 1

[2]   State of UP v. Munshi air 2009 SC 370

[3]  Lilu and Anr v. State of Haryana AIR (2013) 14 SCC 643

[4] Lilu and Anr v. State of Haryana AIR (2013) 14 SCC 643

[5] Sate of Jharkhand v. Shailendra kumar Rai 2022 SCC OnLine SC 1494

[6] Sate of Jharkhand v. Shailendra kumar Rai 2022 SCC OnLine SC 1494

[7] Sate of Jharkhand v. Shailendra kumar Rai 2022 SCC OnLine SC 1494

[8] Sate of Jharkhand v. Shailendra kumar Rai 2022 SCC OnLine SC 1494


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