ORIENTAL COLLEGE OF LAW, NAVI MUMBAI

ROLL NO: XX

BEFORE THE HON’BLE HIGH COURT, MUMBAI

IN THE MATTERS OF:

GULAB ...

PETITIONER

V.

RAMNARAYAN ...

RESPONDENT

WRIT PETITION NOS. 12/2018

ON SUBMISSION TO THE HON’BLE HIGH COURT, MUMBAI

UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

COUNSEL APPEARING ON BEHALF OF THE APPELLANT

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1. TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………….....V
TABLE OF CONTENTS...........................................................................................................II

INDEX OF AUTHORITIES..............................................................................................................II

STATEMENT OF JURISDICTION.........................................................................................III

STATEMENT OF FACTS.......................................................................................................IV

STATEMENT OF ISSUES....................................................................................................... V

SUMMARY OF ARGUMENTS...............................................................................................6

ARGUMENTS ADVANCED...................................................................................................8

1.1. That the position created by impugned order is one of negation of law and justice...8

1.2. appellant has locus standi to file the present petition..................................................8

1.3. That honb’le high court of mumbai is the custodian of all justice within the limits of
its territorial jurisdiction and Family Court, Bandra is within its territorial jurisdiction...8

2. THAT THE HONB’LE FAMILY COURT, BANDRA HAS ERRED IN THE ORDER PASSED

DIRECTING THE APPELLANT TO UNDERGO MEDICAL EXAMINATION TO PROVE HER

VIRGINITY...............................................................................................................................9

3. THAT THE IMPUGNED ORDER OF HONB’LE FAMILY COURT, BANDRA HAS INTERFERED

WITH THE APPELLANT’S RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE CONSTITUTION......9

3.1. That Article 21 Has Been Violated.............................................................................9

PRAYER..................................................................................................................................11

2. Index of Authorities

STATUTES

Constitution of India.........................................................................................................passim

Cases

Surajit Singh Thind v. Kanwaljit Kaur, Punjab & Harayana High Court............................8, 10

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C.O. No.3309 of 2018 & C.O. No.3310 of 2018, Calcutta High Court...................................11
Bhaswati Sarkar v Angshuman Sarkar, AIR 2000 Calcutta 210.............................................11

3. STATEMENT OF JURISDICTION

The Appellant has approached this Hon’ble Court under Article 227 of the Constitution.
Leave has been accordingly granted.

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4. STATEMENT OF FACTS

1. By way of this appeal under Article 227 of constitution of India appellant has
challenged the impugned order dated 25.12.2017 passed by learned Judge, Family
Court, Bandra, in HMA Petition No.125/2017 whereby the petition of the
appellant/wife under Section 12 of the said Act has been allowed on the ground of
impotency of the respondent.

I. BACKGROUND

2. Marriage of Appellant was solemnized with Respondent on 01/10/2017. It was an

Arranged Marriage. After marriage the Appellant stayed at her matrimonial house with
Respondent for a few days and left for her parental home.

3. In November 2017 the Appellant filed a Marriage Petition No. 125/2017 before
Family Court, Bandra under Section 12 of Hindu Marriage Act, 1955 for seeking a decree of
annulment of marriage. The Only ground raised in the said petition that Respondent was an
impotent and due to his impotency, the said marriage has not been consummated.

4. The Respondent filed his written statement on 2nd December 2017 opposing the
petition. The Respondent Ramnarayan denied the allegation and contended that he was not an
impotent.

5. During pendency of the said proceedings the Respondent Ramnarayan filed an

application dated 20th December 2017 for medical examination of the Appellant to prove that
she was not a virgin.

6. The Appellant opposed the application; however, the family court allowed the
application by an Order dated 25th December 2017 and directed the Appellant to undergo
medical examination. The Trial Court was of the opinion that all steps can be taken for
finding out the truth.

II. THE RESULTANT LITIGATION

7. Pursuant to the aforementioned factual matrix, the applicant moved the Honb’le High
Court Mumbai to challenge the said order of the Family Court, Bandra and preferred this
Civil Writ Petition under Article 227 of the Constitution contending that impugned order has
interfered with Appellant’s Right to Privacy under Article 21 of the Constitution of India.

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5. STATEMENT OF ISSUES

1. Whether the writ petition file by the Appellant is maintainable before the Honb’le High
Court of Mumbai

2. Whether the Honb’le Family Court, Bandra has erred in directing the Appellant to undergo
medical examination?

3. Whether the impugned order of Honb’le Family Court, Bandra has interfered with the
Appellant’s right to privacy under Article 21 of the Constitution of India ?

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6. SUMMARY OF ARGUMENTS

I. THAT THE WRIT PETITION FILED BEFORE THE HIGH COURT OF MUMBAI IS

MAINTAINABLE

The exercise of the writ jurisdiction of the High Courts under Article 227, 1 in the
present petition is maintainable primarily on three grounds: 1.1] That the position created by
the impugned order is one of negation of law and justice. 1.2] That the Appellant has locus
standi to file the present petition since the impugned order of Honb’le Family Court, Bandra
has interfered with her right to Privacy under Article 21 of the Constitution of Indian 1.3] The
Honb’le High Court of Mumbai is the custodian of all justice within the limits of its
territorial jurisdiction and Family Court, Bandra is within its territorial jurisdiction

II. THAT THE HONB’LE FAMILY COURT, BANDRA HAS ERRED IN THE ORDER PASSED

DIRECTING THE APPELLANT TO UNDERGO MEDICAL EXAMINATION TO PROVE HER

VIRGINITY

It is submitted that that medical examination of appellant is not required nor it is

mandatory for obtaining a decree under section 12(1)(a) of the Act. The Hon’ble Family
Court, Bandra in its order directing the medical examination of the Appellant for her virginity
certainly violates her right of privacy and personal liberty enshrined under Article 21 of the
Constitution. Such an order would amount to a roving enquiry against a female who are
vulnerable even otherwise.

III. THAT THE IMPUGNED ORDER OF HONB’LE FAMILY COURT, BANDRA HAS INTERFERED

WITH THE APPELLANT’S RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE CONSTITUTION

A virginity test is in violation of the following human rights:

 The right to be protected from discrimination based on sex: Virginity tests violate
the right to be protected from discrimination on the basis of sex since the harmful
consequences of the test are to be experienced exclusively by women and girls.
The roots of this test itself are based in the patriarchal system of gender
discrimination and violence against women.

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Article 227, Constitution of India.
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 The right to privacy and physical integrity: Virginity testing infringes an

individual’s right to make an independent decision about an examination which
can cause lasting physical, psychological and socio-economic impacts on her.
Thus the impugned order violates the appellant’s right to privacy under Article 21 of
the Constitution.

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7. ARGUMENTS ADVANCED

1. THAT THE WRIT PETITION FILED BEFORE THE HIGH COURT OF MUMBAI IS

MAINTAINABLE

1. The exercise of the writ jurisdiction of the High Courts under Article 227, 2 in the
present petition is maintainable primarily on three grounds: 1.1] That the position created by
the impugned order is one of negation of law and justice. 1.2] That the Appellant has locus
standi to file the present petition since the impugned order of Honb’le Family Court, Bandra
has interfered with her right to Privacy under Article 21 of the Constitution of Indian 1.3] The
Honb’le High Court of Mumbai is the custodian of all justice within the limits of its
territorial jurisdiction and Family Court, Bandra is within its territorial jurisdiction

8......1.1. THAT THE POSITION CREATED BY IMPUGNED ORDER IS ONE OF NEGATION

OF LAW AND JUSTICE

9. The medical examination of appellant is not required nor it is mandatory for obtaining a
decree under section 12(1)(a) of the Act. The impugned order therefore is one of negation
of law and justice.
10. In matrimonial matters, already the parties are at logger head and their feelings are
subjective. While so, the Courts need to go slow in ordering these kinds of applications
by weighing the circumstances of the case. The trail court by allowing such application
would only further widen the gap between the spouses.

11....................1.2. APPELLANT HAS LOCUS STANDI TO FILE THE PRESENT PETITION

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13. In public law, the rule that only the aggrieved person is entitled to seek judicial redress is
well settled. In the present case, the Appellant is aggrieved by the impugned order of the
Honb’le Family Court Bandra which has directed the medical examination of her
virginity. Therefore, it is humbly submitted that the Appellant has locus standi to file this
petition.

2
Article 227, Constitution of India.
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14............1.3. THAT HONB’LE HIGH COURT OF MUMBAI IS THE CUSTODIAN OF ALL

JUSTICE WITHIN THE LIMITS OF ITS TERRITORIAL JURISDICTION AND FAMILY
COURT, BANDRA IS WITHIN ITS TERRITORIAL JURISDICTION

15. The Honb’le Family Court, Bandra is within the territorial jurisdiction of Honb’le High
Court of Mumbai & hence this writ petition under Article 227 of the Indian Constitution
is maintainable.

2.. THAT THE HONB’LE FAMILY COURT, BANDRA HAS ERRED IN THE ORDER PASSED
DIRECTING THE APPELLANT TO UNDERGO MEDICAL EXAMINATION TO PROVE HER
VIRGINITY

16. It is submitted that subjecting the Appellant to medical examination to prove her virginity
is not warranted because such a medical examination even if it does not prove her
virginity would not necessarily lead to the conclusion that the marriage with the husband-
respondent has been consummated. It is trite to state that virginity is not the only proof of
non-consummation of marriage.
17. The virginity test cannot constitute the sole basis to prove the consummation of marriage.
Allowing such a medical examination of the wife-appellant would be holding a roving
enquiry which is not permissible as observed by the Supreme Court.

18..........3. THAT THE IMPUGNED ORDER OF HONB’LE FAMILY COURT, BANDRA HAS
INTERFERED WITH THE APPELLANT’S RIGHT TO PRIVACY UNDER ARTICLE 21 OF
THE CONSTITUTION

19. It is humbly submitted, that in light of the below mentioned laws, cases, and arguments,
the impugned order of the Honb’le Family Court of Bandra dt. 25-11-2017 violates A.21
of the fundamental rights of the Appellant.

20..........................................................3.1. THAT ARTICLE 21 HAS BEEN VIOLATED.

21. It is now a settled position that right to life and liberty under Art. 21 includes right to
privacy. Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters.
22. Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence nor
to attack upon his honour and reputation. Everyone has the right to protection of the law
against such interference or attacks.”

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23. Article 17 of International Covenant of Civil and Political Rights (to which India is a
party) states “No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home and correspondence, nor to unlawful attacks on his honour and
reputation”.
24. Article 8 of European Convention on Human Rights states “Everyone has the right to
respect for his private and family life, his home and his correspondence; there shall be no
interference by a public authority except such as is in accordance with law and is
necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the protection of health or morals or for the
protection of the rights and freedoms of others.”
25. The right to privacy encompasses the right to protect a person’s intimacy, identity, name,
gender, honour, dignity, appearance, feelings and sexual orientation.
26. It is humbly submitted that the impugned order of the trial court has infringed upon the
appellants right to privacy by directing her to undergo medical examination for Virginity.
27. There are instances of specific inter-personal relationships wherein one party might be
obligated to maintain a certain measure of confidentiality. A doctor-patient, husband-
wife, customer-insurance company or an attorney-client relationship; are instances where
there exists a strong ethical obligation on the part of one party to protect the privacy of
information relating to an individual which may expose him to social humiliation and/or
ridicule. In this case the respondent by filing an application for medical examination of
the appellant is infringing on this obligation.
28. Virginity testing is highly invasive, having no scientific or medical requirement, yet
carried out in the name of medical protocols.
29. Virginity testing is a blatant violation of the dignity of a woman. The conclusion drawn
from these tests about a woman’s sexual history and character is a direct attack on her
dignity and leads to adverse effects on the social and cultural standing of a victim.
30. Virginity tests are discriminatory against the female victim as they are carried out on the
basis of their gender, therefore offends Article 25 of the Constitution.
31. In Surajit Singh Thind Vs Kanwaljit Kaur,3 the Hon’ble Punjab & Harayana High Court
has held that, “allowing medical examination of a woman for her virginity amounts to
violation of her right to privacy and personal liberty enshrined under article 21 of the
Constitution. Such an order would amount to Roving enquiry against a female who is

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Surajit Singh Thind v. Kanwaljit Kaur, Punjab & Harayana High Court, 25 April 2003.
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vulnerable even otherwise. The virginity test cannot constitute in Sole basis, to prove the
consummation of marriage.”
32. In C.O. No.3309 of 2018 & C.O. No.3310 of 2018, Honb’le High Court Calcutta
observed merely because the wife, in her divorce petition, made an allegation that the
marriage was not consummated, she need not be subjected to virginity test.
33. In Bhaswati Sarkar v Angshuman Sarkar, 4
AIR 2000 Calcutta 210, the Calcutta High
Court has held that “it is not inclined to hold the view that sexual impotency of the
husband could only be proved upon proof of virginity of the wife at the trail stage”.
34. Due to the aforementioned law, precedents and arguments, the Counsel humbly submits
that the fundamental Right to Privacy have been violated under A. 21 of the Constitution

35. PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
it is humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. That the writ petition filed Appellant is maintainable before the High Court of
Mumbai.
2. That the Honb’le Family Court, Bandra has erred in passing the order directing the
Appellant to undergo medical examination to prove her virginity
3. That the impugned order of the Honb’le Family Court, Bandra has interfered with the
Appellants right to Privacy under Article 21 of the Constitution of India

And Issue a writ, order or direction in the nature of certiorari to quash the impugned
order dated 25.11.2017 (Annexure no.1)

ALL OF WHICH IS RESPECTFULLY SUBMITTED

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Bhaswati Sarkar v Angshuman Sarkar, AIR 2000 Calcutta 210.
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COUNSEL FOR THE APPELLANT

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