Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Madhya Pradesh High Court: In a petition filed by the husband seeking virginity test of his wife to prove cruelty as she allegedly refused to have a physical relationship with him, the Bench of Vivek Jain, J., rejected the present petition, holding that the medical examination or virginity test would be nothing but invasion of privacy of the wife, which otherwise also was not a direct ground to seek divorce, and not essential to adjudicate on the issues arising in the present case.
Background
The husband filed a divorce petition on the ground of cruelty stating that the wife refused to have a physical relationship with him.
In written statement, the wife denied allegations that she was mentally infirm and ill and contended that she was being harassed for dowry. She also contended that she was being subjected to physical and mental cruelty, including acts of sodomy by the husband.
The husband filed an application seeking wife’s medical examination to ascertain whether she had entered into sexual relationship with anybody and whether she was subjected to sodomy/anal intercourse, at any point of time. The Family Court rejected this application holding that the divorce petition was filed on the ground of cruelty and the medical examination could not be ordered considering the pleadings.
Analysis
At the outset, the Court stated that the parties entering into sexual relationship or not, was not a ground of divorce and the fact was relevant only for the limited purpose in the present case to ascertain whether the wife has committed cruelty upon the husband by refusing to enter into sexual relationship. Otherwise, it is neither a ground for declaring the marriage as void nor voidable under Sections 11 and 12 of the Hindu Marriage Act, 1955, nor a ground of divorce under Section 13. The Court further noted that there was no allegation of impotency upon the wife which would necessitate her medical examination.
The Court referred to Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was held that in matrimonial matters where divorce is sought on a particular ground, which can only be established by medical examination, then without medical examination, it is difficult for the Court to arrive at any conclusion. Thereafter, the Court noted that in the present case, the wife refusing sexual relationship in itself is not a ground of divorce nor it is a ground to declare the marriage as void or voidable. It was just being claimed as part of the alleged cruelty inflicted by the wife on the husband.
Regarding the allegation of sodomy, the Court stated that if sodomy was committed much prior to medical examination, then it cannot be ascertained in a medical examination conducted many years after and it would amount to nothing but the invasion of privacy of the person and her humiliation.
“So far as the medical examination to ascertain whether the wife has ever entered into sexual relationship or not, is concerned, it is nothing but seeking virginity test of the wife in different words.”
The Court further stated that the recent judicial trend was heavily against conducting virginity test of a woman. Even otherwise it was medically well settled that even after sexual intercourse, the hymen may remain intact in some rare cases, and on other hand, hymen may be damaged even without sexual intercourse due to any other physical activity. Therefore, presence or absence of hymen, would not be a determinative factor to infer whether there had been sexual intercourse with the wife ever.
In this regard, the Court placed reliance on State of Jharkhand v. Shailendra Kumar Rai, (2022) 14 SCC 299, wherein the Supreme Court heavily deprecated the practice of conducting virginity test and considered the guidelines of the Ministry of Health and Family Welfare. The said guidelines contain the irrelevancy of application of two-finger test and state that 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 even an intact hymen does not rule out sexual activity nor a torn hymen proves previous sexual activity.
The Court also referred to a similar case of Sephy v. CBI, (2023) 1 HCC (Del) 646, wherein the Delhi High Court considered the entire legal aspects of medical examination to conduct virginity test in detail.
Thus, the Court rejected the present petition, holding that the medical examination or virginity test would be nothing but invasion of privacy of the wife, which otherwise also was not a direct ground to seek divorce, and not essential to adjudicate on the issues arising in the present case.
[Bhupendra Kushwaha v. Priyanshi Kushwaha, 2026 SCC OnLine MP 379, decided on 21-01-2026]
Advocates who appeared in this case:
For the petitioner: Mohd. Aadil Usmani