Cal HC | Divorce on ground of non-consummation of marriage – Virginity test not necessary: not a reliable indicator of sexual intercourse

Calcutta High Court: Sahidullah Munshi, J. allowed the appeal for the subsequent dates being asked for by the husband for the potency test but dismissed the appeal made by the husband for the virginity test of the wife as it did not appear to the Court a sound proposition of law.

In the instant case, two revision applications were heard together because the question of law and facts were identical. The suit was filed by the wife seeking annulment of marriage by a decree of nullity under Section 25(i) of the Special Marriage Act, 1954 and alternatively for divorce under Section 27(1)(d) of SMA. Wife filed an application, praying for the potency test of the husband and the same was allowed and on that basis wife pleaded that the marriage was not consummated, considering it a void marriage. The husband filed an application seeking a virginity test on his wife which was rejected. The husband appeared before the Medical Board for the said test and it was unanimously held by the Board that the party should be referred to FMS Department, Calcutta Medical College. The husband did appear before the Board but, he, later on, filed an application before the Court for subsequent dates for his appearance before the board.

The trial court rejected husband’s application seeking virginity test and relied on a passage of renowned author that stated “Virginity test is not a reliable indicator of a female having actually engaged in sexual intercourse because the tearing of the hymen may have been the result of an involuntarily sexual act”. The trial court further rejected the husband’s application for extending the date of potency test before the Medical Board finding him reluctant to appear before the Board.

Learned counsel, Dipanjan Datta, Sayan Datta and Rituparna Saha, for the petitioner, contended that since the wife has made allegations that the marriage was not consummated, she should be subjected to a virginity test.

Learned counsel, Ankit Agarwala and Alotriya Mukherjee, appeared on behalf of the opposite party contended that delay in the potency test would be a great loss to the wife.

The Court opined that the trial court was not justified in rejecting the prayer of the husband for extension of time when it was apparent that the result of the test was crucial and it would decide the fate of the parties. The application was to be allowed for the benefit of both the parties stating that delay in the test is a loss for wife, was not considered valid for refusing the application. Therefore, the revision application was allowed. The Court directed the medical college to allow the petitioner on a subsequent date but that shall be fixed within two months from the date of communication of the order and the petitioner was directed to communicate the same to the Superintendent of medical college. The Court did not find any irregularity or material illegality in the order passed regarding the virginity test. [Sri v. Smt, CO No. 3309 of 2018, decided on 21-06-2019]

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    Divorce is not the remedy in case of non consumation of marriage, parties have to ask for annulment of marriage if not consumated within certain period

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