"This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so-called test has no scientific basis. It instead re-victimizes and re-traumatizes women."

The per vaginum examination, also known as the two-finger test, has been used in rape cases to check for signs of sexual intercourse, especially to establish if the victim is 'habituated' to sexual intercourse. On October 31, 2022, the Supreme Court in State of Jharkhand vs Shailendra Kumar Rai,[1] reiterated the ban on the two-finger test, enhacing the importance of the same while adding onto other similar judgements. In the current judgement, the court observed that the test is scientifically inaccurate, patriarchal, and an affront to the dignity of sexually assaulted women. The court further higlighted that "the probative value of a woman's testimony does not depend on her sexual history". The court also directed the Union and state governments to ensure that medical professionals who continue to conduct the test be held guilty of misconduct.

What is two-finger test/ virginity test?
A virginity test is the practice and process of determining whether a woman (or girl) is a virgin; i.e., to determine that she has never engaged in, or been subjected to, vaginal intercourse. The test typically involves a check for the presence of an intact hymen, typically on the flawed assumption that it can only be, and will always be torn as a result of vaginal intercourse. It has been practiced since ancient times but its recent use in the United Kingdom dates back to the 1970s. It is still legal for doctors in the United States to perform virginity tests.

Virginity testing is widely considered controversial, because of its implications for the tested women (and girls), because it is viewed as unethical, and because a number of such tests are widely considered to be unscientific. In cases of suspected rape or child sexual abuse, a detailed examination of the hymen may be performed, but the condition of the hymen alone is often inconclusive.

Another form of virginity testing involves testing for laxity of vaginal muscles with fingers (the "two-finger test"). A doctor performs the test by inserting a finger into the female's vagina to check the level of vaginal laxity, which is used to determine if she is "habituated to sexual intercourse". However, the usefulness of these criteria has been questioned by medical authorities and opponents of virginity testing because vaginal laxity and the absence of a hymen can both be caused by other factors, and the "two-finger test" is based on subjective observation rather than medical.

Nirbhaya Case (2013): Verma Committee:
Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide a speedy trial and proportional punishment for criminals accused of committing sexual assault against women. The Committee submitted its report on January 23, 2013.

The background of the case is that, On December 23, 2012 a three-member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for better and speedy trial and relatively proportional punishment for criminals accused of committing sexual assault against women. The other members on the Committee were Justice Leila Seth, former judge of the High Court and Gopal Subramanium, former Solicitor General of India. It made recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms.

In the arena of rape, the Committee recommended that the gradation of sexual offences should be retained in the Indian Penal Code, 1860 (IPC).

State of Jharkhand vs Shailendra Kumar Rai (2022):
The commission believed that rape and sexual violence are not only crimes of passion, but also an expression of power. Rape should be treated as a separate crime and should not be limited to vaginal, oral or anal penetration. Any non-consensual sexual penetration should be included in the definition of rape. The IPC distinguishes between rape within marriage and rape outside marriage.

According to the IPC, sex without consent is prohibited. However, the crime of rape is an exception if a husband has sex with his wife without her consent. The commission recommended that the exception for marital rape be repealed. Marriage should not be treated as irrevocable consent to sexual intercourse. Therefore, the relationship between the victim and the accused should not be relevant when examining the complainant's consent to sexual activity.

The Supreme Court's ruling in the case of The State of Jharkhand versus Shailendra Kumar Rai stated that anyone who performs a "two-finger test" or per vaginum examination on a victim of sexual assault will be considered guilty of misconduct. In this case, Justices D.Y. Chandrachud and Hima Kohli, overturned the Jharkhand High Court's decision and found the respondent guilty of rape and murder under the Indian Penal Code (IPC). The appeal was filed to challenge the Jharkhand High Court's decision to set aside the conviction and life imprisonment of the respondent under Sections 302, 376, 341, and 448 of the IPC.

According to the prosecution's case, on the afternoon of November 7, 2004, the respondent allegedly entered the home of the victim and deceased in Narangi village. He allegedly pushed her down and raped her, threatening to hurt her if she made a sound. When the woman screamed for help, the accused poured kerosene on her and set her on fire with a match. Her cry attracted his grandfather, mother and a villager who rushed to help her.

The accused fled the scene when he saw them. The victim was taken to Sadar Hospital in Deoghar, where she was treated for her injuries. The police received information about the incident and recorded the victim's statement the same day. FIR No. 163 of 2004 was registered at PS Sarwna and investigation started. After the investigation, the IO submitted a charge sheet based on Sections 307, 341, 376 and 448 of the Penal Code.

The victim subsequently died on December 14, 2004, as a result of which additional charges were brought against the accused under Section 302 of the Penal Code. The accused denied the allegations against him.

The appellant contended that the High Court had misunderstood two important points: firstly, that the post-mortem examination of the deceased was conducted within 12 hours of death, and secondly, that Dr. RK Pandey was treating the patient next on the table, not in the room where they sat. Despite these arguments, the defendant argued that the medical board's report was inconclusive and the dying declaration was the only evidence that the defendant raped the deceased.

However, the Supreme Court quashed the declaration of the victim as culpable death based on its earlier decision in the case of Moti Singh and Anr. V. State of Uttar Pradesh.[2] An appeal from the Court of Appeal against this decision was deemed inappropriate because an autopsy examination revealed that the victim died of septicaemia caused by burns, making the victim's statement relevant to the events leading to her death and the cause of her death.

A post-mortem report confirmed that the accused sexually assaulted the victim before setting her on fire, which ultimately led to her death. Thus, the dying declaration fulfilled the requirements of sec. 32 (1) and was a relevant circumstance. The prosecutor found beyond doubt that the defendant was guilty of the charges. Despite the session court's decision, the Supreme Court wrongly acquitted the accused. However, the Supreme Court exercised its powers to uphold the rule of law and overturn the decision to avoid error.

The accused was sentenced to life imprisonment under Section 302 IPC and ten years imprisonment under Section 376 of the IPC. These sentences were meant to follow each other. The conclusions of the case were that the "two-finger" test was a complete ban because it was degrading in nature, had no scientific evidence and was in no way substantial evidence.

Indian Evidence Act, 1872, section 32, although a dying declaration should ideally be recorded by the magistrate if a dying declaration has been made in front of the police, it wouldn't be inadmissible for that reason alone. It will still be a valid admission.

Indian Evidence Act, 1872 section 375, The question of whether a woman is accustomed or habitual to sexual intercourse is not important in deciding whether the elements of Section 375 of the Indian Penal Code (IPC) are present in a given case.

In conclusion, in their disagreement, the court again condemned the "two-finger" test as a means of determining whether a victim has been raped, because it proves to be a harmful tool for blaming the victim, humiliating the victim, and questioning her chastity. The test has been called for several times in India, for example by the Verma Committee, formed under former CJI JS Verma, which, shortly after the Nirbhaya case, recommended a ban on the "two-finger" test, noting that the test tested vaginal laxity, it cannot be concluded that a sexually active woman cannot be raped.

The WHO manual on sexual harassment also states: "Virginity testing (aka 'two fingers') has no place, no scientific validity." In 2014, the Union Health Ministry issued a set of guidelines and protocols titled "Medico-legal care for survivors/victims of sexual violence." According to these guidelines, the use of the "two-finger test" to determine rape or sexual assault is not acceptable. The size of the vaginal opening does not provide important information about cases of sexual violence.

For adult women, a vaginal examination can only be performed if it is medically necessary. Although a medical examination is crucial to a forensic investigation, it is not definitive proof of rape because rape depends on the consent of all parties involved, except in the case of minors, where consent is irrelevant. The established legal position is that medical evidence is only evidence because it can only confirm that intercourse took place, while establishing rape is a matter of law.

The guidelines were not legally binding and actions against the guidelines did not lead to criminal charges. Sometimes they were ignored and it was high time that the Supreme Court issued the same order because this test was not only very offensive but also made the laws of our country extremely backward to allow such an immoral practice still exists.

End-Notes:

1. State of Jharkhand vs Shailendra Kumar Rai (2022) 14 SCC 299.
2. Moti Singh and Anr. V. State of Uttar Pradesh, 1964 SCR (1) 688.
    

Written By: Kritika Raj (studying BALLB at USLLS).