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Indian court rules virginity test on nun ‘unconstitutional’

Delhi High Court was hearing a petition by Sister Sephy who was convicted in the Sister Abhaya murder case
Sister Abhaya's body was found in a well at a Kerala convent in March 1992

Sister Abhaya's body was found in a well at a Kerala convent in March 1992. (Photo: UCAN files)

Published: February 08, 2023 12:05 PM GMT
Updated: February 09, 2023 08:57 AM GMT

A top court in India has declared the virginity test performed on a Catholic nun 15 years ago in the course of a murder probe as “unconstitutional” and ordered police and other investigative agencies to desist from such a practice.

“The virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is declared unconstitutional and in violation of Article 21 of the Constitution which includes the right to dignity,” Justice Swarana Kanti Sharma of the Delhi High Court in national capital New Delhi said in an order on Feb. 7.

The order said the test "is sexist and is in violation of the human right to dignity" of a female accused, even if it is conducted "while being in custody.”

Sister Sephy, a member of the St Joseph's Congregation had moved the high court some 13 years ago to challenge the virginity test conducted on her as part of investigations into the 1992 murder of Sister Abhaya, a junior nun from her congregation.

Both the nuns belong to the Kottayam archdiocese of the Eastern rite Syro-Malabar Church in southern Kerala.

Sister Sephy along with Kottyam archdiocesan Father Thomas Kottoor was held guilty by a special Central Bureau of Investigation (CBI) court and sentenced to life in jail on Dec. 23, 2020.

The nun in her petition to the high court said the CBI made her undergo a virginity test in 2008 and came out with a false story that her “hymen was subjected to hymenoplasty to conceal the evidence of rupture of hymen due to frequent sexual intercourse.”

Sister Sephy also brought to the notice of the high court that no such medical procedure was available in India or Asia at that point in time, nor had she ever been abroad, and questioned the legality of her virginity test and the CBI’s conduct.

The high court, in a 57-page order, said: “Virginity testing is a form of inhuman treatment and the same violates the principle of human dignity. The test, being violative of the right to dignity of an individual, cannot be resorted to by the state and the same shall be in teeth of the scheme of Indian Constitution and the right to life enshrined under Article 21.”

It expressed shock that the virginity test was used to determine the truth behind the murder accusation against the nun and also referred to the virginity tests as “being inaccurate.”

The high court questioned the gender bias in society and “obsession with the false concept of virginity” while observing that “though the word ‘virginity’ may not have a definite scientific and medical definition, it has become a mark of purity of a woman.”

“The feeling of being demeaned by such treatment in custody by bodily invasion through conducting a virginity test also brings forth the undesirable and abhorable notion of differentiation on the basis of gender and stereotypes,” the order stated.

The high court dismissed CBI’s defense that it went ahead with the test to unravel the truth saying, “conducting a virginity test on the pretext of reaching truth regarding allegations against her will amount to infringement and violation of her right enshrined in Article 21.”

It also directed the police and other probe agencies to educate their officials about the unconstitutionality of the virginity tests and avoid it in the future, as the Supreme Court has also banned them.

Conducting a virginity test “not only amounts to the interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of a woman,” it added.

The high court also directed the nun to move an appropriate forum for taking action against the officials and for compensation since her appeal against her conviction is still pending in the Kerala High Court.

Church leaders still believe that Sister Sephy and Father Kottoor, who are out of jail on bail, may be proven innocent and therefore no action such as dismissing them from religious life has been taken so far.

The body of 19-year-old Sister Abhaya was found in the well of St. Pius Convent in the Kottayam district on March 27, 1992.

The conviction document said the priest and nun committed the crime to cover up their sex act, which the younger nun accidentally saw while collecting drinking water from the well early morning.

State police initially concluded the case was a suicide. However, the case was later handed over to the CBI following demands from the junior nun's family members and the public.

It was the CBI’s investigation that led to the conviction of the priest and nun, who were also found guilty of destroying evidence and conspiracy, among other charges.

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