Ban Two-Finger Test on Sexual Assault Victims, Madurai HC Bench Orders Tamil Nadu Government

The Madurai bench of the Madras High Court on Thursday directed the Tamil Nadu government to ban the two-finger test by medical professionals for victims of sexual assault.

A division bench of Justices R Subramanian and N Sathish Kumar said: “It has been a common practice for doctors to perform the two-finger test on victims who have been subjected to rape, particularly on minor victims. It is unconstitutional.”

THE CASE

The court was hearing an appeal by a man named Rajiv Gandhi from Pudukottai, challenging his conviction and sentence by the Pudukottai Mahila Court in 2021. He was given life sentence under the Protection of Children from Sexual Offences Act for rape of a 16-year-old, and seven years’ imprisonment under section 363 of the Indian Penal Code (IPC) for kidnapping.

Gandhi, who had a tailoring shop, befriended the girl who came to him for training and later abused her sexually, according to the prosecution. The minor’s father lodged a complaint with the police after she allegedly went missing. She was found with the man later and was subjected to the two-finger test to confirm rape. The counsel added the girl had given her consent and it cannot be treated as forced sexual relationship. However, the additional public prosecutor​ submitted the girl is a minor and so the consent is invalid. The judges held that the fact that the girl did not make an attempt to escape showed the conviction for kidnapping was not justified and set it aside.

The judges modified the life sentence to 20 years’ rigorous imprisonment.

VIOLATION OF RIGHT TO PRIVACY

Quoting a Supreme Court order of 2013, the additional public prosecutor and the appellant’s counsel submitted the test was conducted unconstitutionally and it violated the girl’s right to privacy.

The judges held it was necessary to ban the practice in the state.

The judges also issued an order based on the petitioner’s submissions during the trial banning the two-finger test.

As per the World Health Organization, neither inserting two fingers inside the vagina to check if the hymen is intact or not, nor inspecting the size of a vaginal opening and tears in the hymen can prove that a woman has had sexual intercourse. The technique is practised on the assumption that a hymen can be torn only because of sexual intercourse.

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