A Division Bench of the Hon’ble High Court of Jammu and Kashmir, consisting of Acting Chief Justice Rajesh Bindal and Justice Sanjay Dhar, in the case of State of J & K V/s Md issued directions to all the health professionals of Union Territory of Jammu and Kashmir and Union Territory of Ladakh to strictly desist from undertaking ‘two finger test’ known as ‘per-vaginum examination’ on the rape survivors.
It was found that the prosecutrix had been kidnapped and taken away by the respondent in a car. On 15.12.2014, the prosecutrix was recovered from the custody of the respondent/accused. After investigation of the case, it was found that the prosecutrix, after being kidnapped, was raped by the respondent and accordingly, charge-sheet for offences u/Ss. 363/376 RPC was laid before the trial Court.
Case of the Petitioner- the State
The learned trial Court disbelieved the statement of the prosecutrix on technicalities and for flimsy reasons.
Reasoning and Decision of the Court
The Court recorded its observations with respect to the following two aspects: (a) Mention of the prosecutrix’s name at several places in the judgment, (b) “two finger test” to which the prosecutrix was subjected.
Mention of the prosecutrix’s name
The first such thing being the mention of prosecutrix’s name at several places in the said judgment- which the Court held to be impermissible in law. Although, prohibition contained in Section 228A may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name of prosecutrix in their orders and judgments, so as to avoid embarrassment and humiliation to a victim of rape. Therefore, Courts have to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutrix. Gurmeet Singh, the Supreme Court, while emphasizing that victims of sexual abuse or assault need to be treated with sensitivity during investigation and trial and that trial of rape cases should be generally held in camera, The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime.
We, therefore, feel a need to reiterate and remind the trial Courts of the Union Territories of Jammu & Kashmir, and Ladakh to follow the aforesaid dictum in letter and spirit while dealing with cases of rape and crime against women.
Two finger test
As per these Covenants, State is under an obligation to make such services available to survivors of sexual violence and that proper measure should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy. State of Haryana, 14 SCC 643,came to the conclusion that «two finger test” and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. » The Court then reiterated Guideline 18-B of the guidelines and protocols issued by the Ministry of Health and Family Welfare, Government.
Local examination of genital parts/other orifices
In case of female survivors, the vulva is inspected systematically for any signs of recent injury such as bleeding, tears, bruises, abrasions, swelling, or discharge and infection involving urethral meatus and hymen. Examination of the vagina of an adult female is done with the help of a sterile speculum lubricated with warm saline/ sterile water. Per speculum examination is not a must in the case of children/young girls when there is no history of penetration and no visible injuries. The examination and treatment as needed may have to be performed under general anaesthesia in case of minors and when injuries inflicted are severe.
Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. «Inspite of all this, in the instant case, it appears that the prosecutrix, who was minor at the relevant time, has been subjected to two finger test, which must have violated her privacy, physical and mental integrity and dignity. » Emphasizing the need to ban ‘two finger test’- Court stated»It is the need of the hour to implement the ban on «two finger test” on rape survivors with full force and in this regard a direction is required to be extended to all the health professionals of Union Territories of Jammu and Kashmir, and Ladakh, so that the judgment of the Supreme Court and guidelines and protocols issued by the Ministry of Health and Family Welfare, Govt. «HELD»we direct that all the Courts in the Union Territories of Jammu & Kashmir, and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments.
A further direction is issued to all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh to strictly desist from undertaking «two finger test” known as per-vaginum examination on the rape survivors.
Name: State of J & K V/s Md. Imran Khan
Case No.: SLA No. 38/2018
Date of Decision: 24 December 2020