Introduction
A recent incident came to light when a husband demanded a virginity test of his wife in a matrimonial litigation. Though the Court rejected the application, relying upon several precedents that have already settled the irrelevancy of such a test, the lingering concern still remains as to why such a test is demanded in today’s modern-day Indian society.
When the very essence of a marriage comes down to a woman having to undergo a test to prove her character in a court of law it raises serious questions about the deep-rooted patriarchal notions of our society even after decades of women fighting for their dignity and honour, and also more importantly, what is the way forward when the legal question has been settled but social one remains in contention.
This blog seeks to understand the legality of demanding a virginity test by first analysing the judgement, Bhupendra Kushwaha vs Priyanshi Kushwaha, 2026 and examining the validity of the precedent relied on by the petitioner. Further, it would try to study why a court-ordered virginity test is legally irrelevant, constitutionally impermissible, and socially regressive even in matrimonial litigation. Finally, it would try to explore the deeper issue that such a demand really reflects, shedding light on the history of the virginity test in lieu of the existing social norms, and try to provide solutions for the same.
Legal Analysis
In this case, the Petitioner, Bhupendra Kushwaha alleged cruelty on the ground that his wife refused to have any physical relations with him and filed for divorce. The Respondent, his wife Priyanshi Kushwaha, denied the allegations of cruelty and contended that she was being subject to physical and mental cruelty on account of dowry, including the act of sodomy (unnatural sex) by her husband.
The husband demanded a virginity test from his wife to ascertain if she had ever had sexual intercourse with anyone else, and if the contention of being subject to sodomy at any point in time was founded. This was rejected by the family court, stating that the ground of divorce is cruelty and a medical examination cannot be ordered in view of the pleadings. After which, the husband filed an appeal in the Madhya Pradesh High Court, citing the Sharda vs Dharmpal case, arguing that the order of the family court ran contrary to it and examination should have been ordered. The major issue before the high court was whether it was possible to compel the Respondent to conduct a virginity test as scientific evidence to be submitted in the court.
The court did not find any substance in the husband’s plea to subject his wife to a medical examination and ruled that demanding a virginity test from the Respondent is an invasion of privacy as well as irrelevant to prove refusal of sexual intercourse for the divorce petition or even prove sodomy alleged by the wife, as it would be medically futile. It also held that the Petitioner can use other evidence to prove the aforesaid contention, and further stated that such a test would simply not be conclusive as well.
The Petitioner had contended that the right to privacy is not absolute, and where a medical examination is sought on matters of a divorce, it cannot be denied by the parties, citing the precedent of the Sharda judgment.
Sharda vs Dharmpal and Its Inapplicability
The case of Sharda vs Dharmpal was a significant judgment which created a limited power to compel medical tests in marital cases. To give a factual background, the Respondent, the husband, filed for a divorce on the grounds of unsoundness of mind, and the court directed the Appellant, the wife, to undergo a medical examination for the same, and the wife refused to provide tests related to mental insanity, defending her right to personal liberty and privacy.
The Supreme Court directed the wife to undergo the tests and laid down that, especially in cases where mental insanity is alleged, there should be a harmonious construction of the spouse seeking such a remedy and Article 21. The judgment in rem, more importantly, laid down three principles of when a court can compel such tests, which include cases seeking relief of a divorce; where the court’s order would not infringe on the violation of the right to personal liberty and only where the court is sufficiently satisfied that the applicant has a strong prima facie case, and there is sufficient material to enable such an exercise.
In the present case, the husband, on his wife’s refusal of sexual intercourse with him, alleges that this constitutes cruelty. Legally, refusal to enter into a sexual relationship is not a ground for divorce under Section 13 of the Hindu Marriage Act, and neither renders a marriage void or voidable. Moreover, in various decided cases, the apex court itself has stated that the nature of the virginity test is degrading and derogatory and against the right to personal liberty and dignity of a woman. Additionally, the refusal to marital sex and allegations of sodomy were not, as the court observed, backed by sufficient material by either of the parties and given the limited exercise of discretion of the court in such cases, there was no strong prima facie case established by the applicant to direct such a test. Hence, compelling the wife to undergo a virginity test is legally flawed, does not meet any of the parameters set or even fit into the factual matrix of the precedent relied upon.
Virginity Test: A Legal Demand or a Social Norm
The soundness of the virginity test was commented upon by the court, and it observed that medically, the accuracy of the test remains a huge question. The hymen in certain circumstances remains intact even after sexual intercourse, and in other cases, it can rupture due to other physical activity, such as cycling. Moreover, citing precedents of the Supreme Court and the Delhi High Court, the court pointed out that the recent judicial trend is heavily against conducting a virginity test of women.
Thus, though the word virginity does not have a medical or scientific backing, it still remains the determination of the purity and innocence of a woman. The court found that it is sexist and in violation of human dignity, and additionally, can neither be relevant nor conclusive for the case and hence dismissed the plea of the husband.
Therefore, the judicial standing remains very clear on the matter of virginity tests and is clearly opposed to the same; the issue lies much deeper in the roots of our society, which must be studied.
Purity and Innocence: A Deep-rooted Issue
The concept of the virginity test is not a new phenomenon in our society. It carries on its own history. But before tracing the origin of the test, it’s important to know the perceived significance of the concept of virginity itself. If we look at it from a religious point of view, it is associated with the concept of purity and pollution. Hinduism strictly prohibits physical intimacy before marriage.
Though in Ancient India, virginity was a sign of purity. Religious texts like the Vedas, Smritis, Dharmashastras etc, do not prescribe any kind of medical or physical test to ascertain virginity. They emphasise the concept of chastity and purity as a moral, social and spiritual virtue, but do not prescribe it to be physically or medically examined. The idea of examination seems to have gained prominence in medieval India, marked by an increase in the intensity of honour-based patriarchal culture, and when women started to be seen as community honour. During this period, the practice of observing bleeding on the first night of the wedding became prevalent. If the wife bled during the consummation, it meant that she was a virgin till that time.
The present form of the virginity test, popularly known as the Two-Finger Test finds its origin during the colonial era. It was adopted to examine the rape survivors. But by now, all forms of virginity tests have been scientifically proven as redundant and irrational. The World Health Organization issued an interagency statement with UN Human Rights Office and UN Women in October 2018 invalidating the virginity test and calling for its global elimination.
Despite such developments, virginity continues to be an integral part of the way that society looks at a woman. The character of being pure and innocent is directly dependent on whether she has her hymen intact, and the biggest issue lies in the fact that even after decades of scientific research, which has proved it wrong, society still shamelessly asks the same question. This is a clear reflection of the fact that even if we have modernised our living and consider ourselves “forward”, we as a society haven’t really moved with time and science.
Conclusion
It is very rightly said that the courts are a reflection of society, and vis-à-vis the society is a reflection of the courts. The deep-rooted principles of patriarchy that once dominated society, with the passage of time, remain ingrained in the minds of people. The very plea of a husband demanding that the court compel his wife to undergo a virginity test is so disturbing and sexist.
The virginity test is not connected with ancient India. The painful and degrading tests were developed as a result of colonisation and medieval invasions. Over time, they became a norm in society, and it’s disturbing to find their remnants even in modern India. Virginity tests in today’s world serve no purpose, and the courts say this, yet such pleas are still not unusual.
Moving forward, the courts can adopt the same stance they do in fame-related environmental cases, where, when the allegations are found to be insubstantial, the petitioner is fined, and punitive damages are imposed. Similarly, if seeking a direction to compel a woman to undergo such an unscientific test from the court itself is met with such deterrence, it could help ward off such petitions. Additionally, the legal community as well would then be more careful in seeking such remedies, avoiding the filing of such petitions in general.
Apart from this, the legal community, including students of law, can take up initiatives to raise awareness in society using legal drives, street plays, workshops, and door-to-door campaigns to help create a more socially alert society which understands the consequences of demanding derogatory and inhuman tests.
Women’s empowerment isn’t just about screaming for equal rights, but also about addressing the problems that threaten the very foundation of society. When such cases surface, a collective conscience of people is needed because courts can interpret constitutional principles, but what makes a difference is when these principles become the ground reality of society as a whole.
(This post has been authored by Hemant Kumar & Diya Jain, second-year law students at National Law Institute University, Bhopal.)
CITE AS: Hemant Kumar and Diya Jain, ‘Virginity Test: A Shameful Demand’ (The Contemporary Law Forum, 28 April 2026) <https://tclf.in/2026/04/28/virginity-test-a-shameful-demand/> date of access.