Rape is unwanted, forcible sexual contact with a person’s body. Rape is a crime against a person’s body that breaches their self-respect and dignity, reducing them to the status of objects primarily utilised for sexual purposes or desire. The definition of rape under Section 375 of the IPC is unambiguous and explicitly specifies that rape is considered to have happened in the absence of consent. According to section 375 of the Indian Penal Code, any or all of the following acts committed by a male against a woman constitute rape[1]:
- Penetration of a man’s penis into the mouth, vagina, urethra, or anus, or forcing a woman to do so with him or another person; or[2]
- Any item other than the penis being inserted into a woman’s vagina, urethra, or anus, or forcing a woman to do so with him or another person; or[3]
- Causing penetration into the woman’s vagina, urethra, anus, or any other bodily part by manipulating any portion of her body, or forcing her to do so with him or another person;[4]
- Putting his mouth to a woman’s vagina, urethra, or anus, or forcing her to do so with him or another person.[5]
Any undesirable or unwanted sexual actions carried out by a spouse or ex-spouse that are done without consent or that are acquired against the person’s will using force, coercion, or threat are considered marital rape or spousal rape. Yet it is not criminalised in India, but due to the Exception 2 of Section 375, it is not rape if a man engages in sexual activity with his own wife and she is beyond the age of 15.
A medical examination known as the “two-finger test” is carried out on rape victims to determine their health and medical needs, gather evidence, etc. It entails examining the vagina to see whether she is used to sexual intercourse. The two-finger test has drawn the ire of the Supreme Court throughout the years since it is considered to be unscientific and to lack sufficient information. The two finger test has historically been performed on rape victims as part of a medical examination to evaluate two factors: whether or not the hymen is ripped, and to check the flexible of the vagina. The two finger test was used to check whether the victim had developed a habit of engaging in sexual activity. Despite the fact that the victim’s sexual history is irrelevant in deciding whether rape has really occurred in the specific incident reported, the medical officer’s opinion about the results of the two finger test has frequently been used against the rape victim when entered as evidence in a rape trial.
Marital rape occurs when a man coerces his spouse into an unwanted sexual encounter using physical force, threats, or when she is not ready to offer her permission. A spouse committing non-consensual assault against his wife is considered to have committed marital rape. The spouses are sexually and physically abused in marital rape. The image of women and married women is devalued and damaged by marital rape, which is a very harsh and unjust conduct. India has not yet made marital rape a crime. Marital Rape is a clear violation of Article 14 of the Indian Constitution. Article 14 of the constitution talks about equality, but it does not grant equal rights for her sexual desire in the case of marital rape.
BAN ON TWO-FINGER TEST
The Supreme Court prohibited the use of the two-finger test in rape cases on October 31, 2022, with a warning that anybody using the technique would be guilty of misconduct. The test has no scientific basis and no sufficient information. It rather re-victimizes women and makes them re-live their trauma. It is highly intrusive medical examination and has no base to support the idea of whether or not the victim is raped. According to the World Health Organization (WHO), neither of the two-finger test’s procedures can establish whether or not a woman has engaged in vaginal activity. It is a no obsolete standard for the sexual assault test. Because the hymen can extend during physical activities like riding a horse or cycling, it is incorrect to assume that a woman’s hymen can only be ripped during sexual activity. Human Rights Watch encouraged the Indian government to respect the victim’s rights to privacy, health, and dignity by abolishing the two-finger test as a medical examination of rape victims in September 2010.
LILLU RAJESH V. STATE OF HARYANA[6] – BAN ON TWO FINGERS TEST IN INDIA.
During a hearing to restore the conviction in a rape case, the call to ban the test was raised. The validity of the Two Finger Test was rejected by the Supreme Court for the reasons listed below:
- Lack of Scientific Support: The Two Finger Test is “regressive and intrusive” and “lacks scientific support as it neither confirms nor denies charges of rape.”
- Victimization Two Finger Test “re-victimizes and re-traumatises women who may have been sexually abused,”
Against the judgment of the Punjab & Haryana High Court, a criminal appeal was filed in the Supreme Court. The defendants were convicted of the rape of a minor. They appealed the ruling, claiming, among other things, that there was no medical support for the prosecutrix’s testimony. The appellant highlighted the medico-legal report, which specifies a two finger test, and claimed that the prospect of the prosecutrix being habituated to sex cannot be ruled out. The two finger test and its application breach the right to privacy, bodily and mental integrity, and dignity of rape survivors, the court said, rejecting the appeal. The court ruled that rape survivors are entitled to legal recourse that does not violate their physical or mental integrity and dignity or re-traumatize them in view of the International Covenant on Economic, Social, and Cultural Rights of 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985. They are also entitled to medical procedures that respect their right to consent. It is important to take the appropriate precautions to prevent any arbitrary or unlawful invasion of the victim’s privacy.
Furthermore, the court relied on Narayanamma (Kum) v. State of Karnataka & Ors.[7], State of Uttar Pradesh v. Munshi[8], and Narender Kumar v. State (NCT of Delhi)[9], in which the Supreme Court declared that the admittance of two fingers that offers an insight into the history of rape survivor’s sexual intercourse does not give a strong evidence of her being accustomed to sexual intercourse, and even if she is habituated to it.
STATUS OF TWO FINGER TEST IN OTHER COUNTRIES
In the case of Atif Zareef v. The State, the Supreme Court of Pakistan ruled on January 4, 2021, that the two-finger test performed on victims was unlawful. It was stated that bringing up the victim’s sexual past blatantly belittles both the victim’s body and mind. Even the addition of terms like “habituated to sex” and “women of lose character” traumatise the victim and cast doubt on her self-worth. It should thus be avoided. The Indian case Lilu @ Rajesh & others v. State of Haryana[10], in which the court found that the two-finger test violates the victim’s bodily and mental integrity, was cited by the Supreme Court of Pakistan.
Virginity tests were required in the UK for immigrant women planning to wed domestically born partners. Virgins were thought to be more likely to provide accurate information on this movement. This strategy, nevertheless, was abandoned in 1979 and is no longer followed.
In Afghanistan, “rape” is not a distinct crime; rather, it is recognised with other sexual offences like adultery, dishonour, etc. The law in this country is very crooked; occasionally, rape victims are charged with crimes for Zina (Adultery). The Afghan Criminal Procedure Code mentions the use of forensic evidence, however in practice, the prosecution and use of expert evidence are contradictory. Both rape and adultery cases sometimes use bimanual medical testing. Despite the fact that this test is performed and used to determine guilt or the accused’s innocence.
STATUS OF MARITAL RAPE IN INDIA
In India, the idea of marital rape is the definition of what we mean by “implied consent.” Marriage in this context between a man and a woman indicates that both have given their permission to sexual activity, and it cannot be otherwise. After indulging in marital relations, a wife is legally deemed to have given her husband her unrestricted agreement to have sex.
The Delhi High Court delivered a 1:1 split decision on the issue of criminalising marital rape in May and stated that the Indian Supreme Court will have to decide the case. According to a report by India Today, the two-judge bench of justices Rajiv Shakdher and C. Harishanker objected on the question of whether the exception made for sexual actions committed by a husband against his wife may be regarded as legal under the Constitution. The Karnataka High Court issued a ruling in March stating that “rape is a rape,” whether it is committed by a man, the “husband,” on a woman, the “wife.” The statement was made as the court was contemplating a case brought forth by a lady who claimed that her husband had treated her like a sex slave from the very beginning of their marriage. She said that her husband had pushed her to engage in unnatural intercourse, even in front of her daughter, calling him “inhuman.”
X V. THE PRINCIPAL SECRETARY[11], GOVT. OF NCT OF DELHI & ANR., (2022) MEDICAL TERMINATION OF PREGNANCY CASE
In this case, a 25-year-old single woman who was 23 weeks pregnant filed a petition with the Delhi High Court to have her pregnancy terminated. She claimed that a consenting connection was the cause of her pregnancy. She was unable to become pregnant, however, because she is an unmarried lady and her partner has declined to wed her. The Delhi High Court declined to grant her relief and highlighted that the MTPR, 2003 did not apply to unmarried women who became pregnant as a consequence of a consensual relationship.
The women then approached the Supreme Court. In response to the woman’s petition, the Supreme Court issued an interim order permitting her to terminate the pregnancy, subject to the judgement of the AIIMS Delhi-established medical board.
The Supreme Court delivered a significant judgement in the case of X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi, holding that there should be no distinction between married and unmarried women seeking an abortion of a pregnancy in the 20–24 week range resulting from a consensual relationship. It declared that every woman has a right to a safe and legal abortion. With this decision, the Apex court declared the Medical Termination of Pregnancy Rules (MTPR) to be unconstitutional in its exclusion of unmarried women who become pregnant through live-in relationships. Whether this exclusion under Rule 3B of MTPR was legitimate was the question before the supreme court.
ABORTION ON GROUNDS OF MARITAL RAPE
The Medical Termination of Pregnancy Act, 1971 (the “MTP Act”) was enacted as a result of advancements in medical science that made abortions safer. The Medical Termination of Pregnancy (MTP) Act guarantees all women access to safe and legal abortions up to 24 weeks of pregnancy, and the Supreme Court ruled on Thursday that establishing any distinctions based on a woman’s marital status is “constitutionally unacceptable.” The Supreme Court ruled that sexual assault perpetrated by a spouse on his wife shall be considered rape under the act’s terms. The MTP act would include marital rape in its definition of rape, it was further said.
AMMENDMENT OF ABORTION LAWS IN INDIA
The new Medical Termination of Pregnancy (Amendment) Act 2021 broadens the availability of safe and legal abortion services on medical, eugenic, humanitarian, and social grounds to guarantee everyone has access to complete treatment. The modifications take into account the advancements in medical technology, optimise practitioner requirements, raise the maximum gestational age at which a pregnancy may be terminated in certain circumstances, and remove the maximum gestational age requirement in situations where it might burden the healthcare system. The objective is to provide accessibility to complete abortion treatment without sacrificing a woman’s right to privacy, autonomy, or dignity. Some of these said modifications include – gestation period lengthening from 20 to 24 weeks, identifying pregnancies beyond the traditional marriages by modifying the concept of “pregnant married woman” to “pregnant woman” and “her husband” to “her partner,” ending legal discrimination between married and unmarried women. The admission of unintended pregnancies brought on by the failure of contraceptives, as a result of rape ultimately put a stop to lawsuits brought by rape survivors who sought medical termination up to 20 weeks of pregnancy. The creation of medical boards by the State or UT was concerned with reducing the burden on women who are pregnant who had to go to court to obtain relief, which may cause them physical and psychological suffering.
CONCLUSION
In conclusion this paper aims to highlight the keypoints based on ban of two finger test and the abortion on grounds of marital rape. Rape which is one of the most inhumane crime committed leaves long term effects which can include not only physicsl abuse but also mental anguish and the tests the victim has to go through. Rape does not only affect the victims mental and physical well being, it also affects the social well being of the victim. The families of the said victim also suffers with the victim leaving a very long lasting effect under various circumstances. The two-finger test was one of the said medical practice which violated the victim. In this medical test, two finger are inserted into the victims’s vagina to check whether if the victimwas sexually violated and the victims are made relive their trauma. The Supreme Court considered the test baseless and has no scientific relevance. Therefore, the apex court declared the two-fineger test banned.. Marital rape is not criminalized in India under the exception 2 of section 375 of IPC. Therefore which bring to the question of abortion rights under the grounds of marital rape. The new amendment of MTP Act in 2021 now allows abortion under the grounds of marital rape.This new act include several new reforms which was previously not included to allow safe and legal abortion.
[1] The Indian Penal code, 1860, § 375
[2] The Indian Penal code, 1860, § 375(a)
[3] The Indian Penal code, 1860, § 375(b)
[4] The Indian Penal code, 1860, § 375(c)
[5] The Indian Penal code, 1860, § 375(d)
[6] (2013) 14 SCC 643
[7] (1994) 5 SCC 728
[8] AIR 2009 SC 370
[9] (2015) 17 SCC 451
[10](2013) 14 SCC 643
[11] AIR (2022) 779 SC
Author: Geeta Basumatary
Juris Centre 