The Gujarat HC has held that the two-finger test to check the virginity of rape victims is unconstitutional. It directed the trial courts & doctors to bear this in mind because “it violates the right of the victim of sexual assault to privacy, physical & mental integrity & dignity”.
The High Court observed so on the aspect of consent by rape survivor in a “unique appeal” filed by the state gont. The High Court convicted one Rameshchandra Panchal from Kadi town for rape nearly 25 years after he was exonerated by a trial court “by mistake” in 1995. The victim was a minor, but the court by mistake counted that she was above 16 & recorded Panchal’s acquittal on the basis that the sexual relations between Panchal & the victim were with her consent. Panchal, however, was punished with a seven-year jail term for abduction of the girl under sections 363 & 366 of Indian Penal Code.
However, after recording the acquittal, the sessions court at Mirzapur rural court campus realized that the victim was below 16 years, & a minor, & her consent was immaterial & the offence amounted to statutory rape. Since the trial court had recorded its verdict, it couldn't review its own order. The High Court corrected the mistake 25 years later in response to an appeal filed by the state govt. The High Court declared Panchal guilty of rape & ordered him taken into custody. The court has summoned him on Dec 31, when it is likely to sentence him for rape.
The ‘two-finger test’ also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles & whether the hymen is distensible or not.
Calling upon courts & doctors to do away with the “archaic & outdated” practice, the bench of Justice J B Pardiwala & Justice B D Karia cited various orders by the Top Court & recommendations by the International Covenant on Economic Social & Cultural Rights 1966, a UN declaration in 1985 & planning commission’s orders & recommendations to this effect that medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment for victims of gender-based violence.
The High Court said that the Indian Evidence Act doesn't permit character assassination of a witness & two-finger test is also “one of the most unscientific methods of examination used in the context of sexual assault & hasn't forensic value”.
The court further said that since the Supreme court is considering the issue of ‘two-finger test’, “Our endeavour is to remind the trial courts as well as the medical fraternity that the ‘two-finger test’ is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical & mental integrity & dignity. If the trial court comes across any such medical certificate, wherein, there is a reference of such test, then it should take cognizance of the same & do the needful in the matter.”
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