“ROOT CAUSES OF CUSTOMARY PRACTICES OF VIRGINITY TESTING IN INDIA AND AFRICA” BY - MADHURI TULSHIRAM GANGURDE & DR. ADV HARITA SHINDE BANGALI
“ROOT
CAUSES OF CUSTOMARY PRACTICES OF VIRGINITY TESTING IN INDIA AND AFRICA”
AUTHORED BY
- MADHURI TULSHIRAM GANGURDE
Research
Student, Law School, Sandip University Nashik
CO- AUTHOR
- DR. ADV HARITA SHINDE BANGALI
Abstract
Virginity
testing, also known as the “two-finger” or “hymen” test, is a common practice
in India. Despite its widespread use, virginity testing has been widely
criticized by medical professionals and human rights organizations as being
unscientific, unethical, and violate of an individual’s privacy and autonomy.
In India, this practice has been used in various contexts, including as a
condition of marriage, to determine the character of rape victims, and as a
tool to determine the “virtue” of women. This paper provides an overview of
virginity testing in India, including its history, current practices, and the
ethical and legal implications of the practice. The paper argues that virginity
testing is a violation of the fundamental rights guaranteed by the Indian
Constitution and also highlights the physical and psychological harm caused by
the test. The paper concludes with a critique of virginity testing, arguing
that it should be abolished as it is violate of an individual’s rights and
dignity.
KEY WORDS: Virginity,
virginity test, two-finger test, female, hymen, violation of rights
1.
Introduction
In India and the African region,
there are several traditional practices conducted and performed by tribes. Long
before the rise of modern global society, communities throughout the world
prospered by harnessing natural resources in an attempt to adapt to the local
natural environment. In the process, a wide-ranging body of knowledge,
innovations, and practices evolved, inextricably linked to the use of natural
resources. It enabled most communities to live within the limits of their local
environment and contributed to shaping their cultural and spiritual identity as
well. Any effort to conserve nature and ecosystems, therefore, must take into
consideration the interface between nature and culture. The long and continuous
usage by the community of the natural resources of the locality evolved into
customary practices. And when customary practice from long usage obtains the
force of law, it becomes customary law. In India and Africa, there are several
customary practices; a few are having a very harsh impact. The
practice of virginity testing dates back to the early twentieth century in
KwaZulu-Natal. Many regard virginity testing as the only way to revitalize what
they view as lost cultural values. The aim of the study is to understand the
reasons for undergoing virginity testing from the perspective of adolescent
girls and boys. The study will explore the importance attached to virginity
testing by adolescent girls and boys. In this present article, the researcher has focused on the
practice of the virginity test and the reasons and root causes of this
particular practice.
2. Virginity practice in Indian and
African cultures
In India, virginity tests are
performed in two ways firstly, in a medical way by a doctor or local physician,
and secondly, in a customary way. In India, the Kanjarbhat community is one of
the tribes in the western Indian state of Maharashtra, where young members are
challenging the centuries-old tradition of “testing” the virginity of brides on
their wedding night.[1]The
practice, said to be 400 years old, determines whether the bride is a virgin or
not by looking for bloodstains on a white bed sheet that the newlywed couple is
instructed to use for intercourse on their wedding night. If the bride is
determined not to be a virgin as a result of this "test," her
family faces being heavily fined or even ostracized from the community. A group
of Kanjarbhat youths who have been actively trying to stop what they consider to
be a heinous ritual have petitioned the government to make it illegal. However,
orthodox community leaders are also pushing to keep alive what they see as a
"tradition." They have even threatened the youth group
and their families with a social boycott that would see them excluded from
normal social and commercial relations in the community. But through their
activism, the young protesters have been able to attract the attention of the
government. Last month, Ranjeet Patil, the Minister of State for Home, met
a delegation of social organizations to discuss the issue of virginity testing.
As a result, the minister said it will be considered “a form of sexual assault”
on the female subject, and will soon be made a punishable offense by law. In South Africa, the practice of
virginity testing is mostly common among the Zulu, and to a lesser extent by
the Xhosa. In practice, it requires the physical examination of a girl in order
to determine if her hymen is intact. [2]
The testing always takes place at the residence of the local chief, where all
the girls of the community are tested by old respected women of the village. In
South Africa in the past virginity testing was conducted by the king’s wives or
other nominated women qualified 2 to do so. Usually it is an older woman who
has already reached menopause. In addition, it should also be an older person
who is no longer sexually active and who has herself undergone virginity
testing In South Africa, according to virginity testing is seen as part of Zulu
cultural identity and is strongly associated with self-respect, modesty, and
pride. One of the key missions of virginity testing is to keep a record of how
many virgins there are in a particular society and also to identify the young
girls who are no longer virgins. In addition, virginity testing is seen as a
means of safeguarding fertility. Many regard virginity testing as the “only way
to instil what they view as the lost cultural values of chastity before
marriage, modesty, self-respect and pride” [3]
3. Reasons behind customary practice of Virginity Test
Proving virgin in a virginity test is
a indicates purity of women. That woman has never engaged in a sexual
relationship this is a mind-set. Securing Virginity is important aspect for
marriage. A girl Virgin before a marriage is a pride thing for a family and if
not that can be stigma on family, clan or society. Let’s discuss reasons behind
virginity test on women
3.1 Virginity as essential criteria for marriage
Premarital
sex is taboo, and there is pressure on young women to maintain their virginity
until marriage. Families and communities try to keep young women and girls
ignorant about sexual matters. Many regard virginity testing as the “only way
to instil what they view as the lost cultural values of chastity before
marriage, modesty, self-respect, and pride.” Women should lose their virginity
on the first day of their marriage, as this will help to sustain the marriage,
meaning they will not have problems in their marriage because the husband will
respect the woman. Virginity testing instils pride and ensures the dignity of a
woman.
3.3 Virginity tests as pride for family.
Virginity
testing was also conducted at marriage, and this is a particularly crucial test
because if a woman proves to be a virgin, her family retains its honour, but if
she fails, her family is shamed, and she is treated as an outcast. Strong
emphasis was therefore placed on ensuring virginity until marriage, and it was
socially regulated. Even on the wedding eve, virginity testing was done to
ensure that the groom had not paid lobola for someone who was no longer a
virgin. Preserving virginity was important because it increased a woman’s
value, especially in marriage, and the bride’s family would be in a position to
negotiate a high bride price, or lobola. If a woman was found not to be a
virgin, her mother would be given a white sheet with a big hole in the center,
signifying that the girl is no longer a virgin.
3.4 Virginity testing as a pregnancy
prevention strategy
In India,
pregnancy before marriage is a shameful thing. Virginity testing is associated
with pride and self-respect. Virginity test practice is based on pre-marital
sexual relations. Adolescent pregnancy is attributed to the low utilization of
contraceptives, especially at first intercourse. It has been reported that
adolescents regard family planning services principally for families and not
for young people.[4]The high
rate of teenage pregnancy among 15–19 year-olds shows a lack of contraception
and condom use, as well as that adolescents are engaging in sexual activities.
Virginity testing is one of the strategies that aim to delay
sexual initiation.
3.5 Myth in Africa virgin girl can cure HIV Aids
Virgins are more vulnerable to rape
due to the myth that sex with a virgin will cure AIDS. Some respondents
reported that not only virgins are being raped because of the myth but also old
grannies whose husbands died a long time ago. There are usually one or two
girls who are raped after the reed dance ceremony but rape is something that is
not common in the community. They argued that men who rape girls are arrested
but that the community sometimes also takes responsibility for punishing these
criminals. Some girls were well informed about the myth that if a man has
sexual intercourse with a virgin he will be cured of AIDS, and therefore felt
vulnerable to rape.
3.6 Preventive measure to control HIV AIDS
KwaZulu-Natal is the province the
hardest hit by the HIV/AIDS epidemic. Respondents believe that virginity
testing will help to reduce the spread of HIV/AIDS, and delaying the onset of
sexual activity among young women will help to curb the number of people
infected with HIV/AIDS. Some girls believe that virginity testing empowers them
as young women and reduces their risk of HIV/AIDS and teenage pregnancy. It
presumed that virginity testing helps to
combat the spread of HIV/AIDS because young adolescents will not engage in
sexual relationships. They will have a fear of engaging in sexual relationships
because they know that when they have to undergo virginity testing, the testers
will find out that they are no longer virgins.[5]
4. Indian and African constitutional shield against
virginity test.
Virginity of women is a gross violation of right to privacy and life with
dignity, right to equality. In Africa Section 14: Right to
Privacy
Everyone has the right to privacy, including
the right not to:
- Be body-searched without a court order
- Have your home searched without a court order
- Have your things taken from you
- Have your letters opened or your telephone tapped
The Interception and Monitoring
Prohibition Amendment Act (1996) prevents
peoples’ conversations being intercepted[6]
Moreover, per Justice Laurie Ackermann, the court had that the
right has more force in more personal contexts:
it is only the inner sanctum of a person,
such as his/her family life, sexual preference and home
environment, which is shielded from erosion by conflicting rights of the
community. Privacy is acknowledged in the truly personal realm, but as a person
moves into communal relations and activities such as business and social
interaction, the scope of personal space shrinks accordingly[7]
In India right to privacy is having a big
ambit and scope. The right to live with dignity is a fundamental human right
recognized in international law, national constitutions, and various judicial
rulings. It encompasses a range of essential elements that ensure a person's
life is free from suffering and humiliation, and allows them to live with
respect, autonomy, and fulfilment.
Components of the Right to Live with Dignity:
- Basic
Needs: This includes access to essentials like
food, water, shelter, clothing, healthcare, and sanitation. Deprivation of
these basic needs can constitute a violation of the right to live with
dignity.
- Physical
and Mental Well-being: Freedom from torture, cruel,
inhuman, or degrading treatment or punishment is crucial for living with
dignity. This also extends to protection from violence, abuse, and
exploitation.
- Social
and Cultural Rights: Participation in society, access to
education, work, and cultural expression are essential for a dignified
life. Discrimination on the basis of factors like race, gender, religion,
or sexual orientation undermines this right.
- Personal
Autonomy and Self-determination: Individuals have the
right to make their own choices about their lives, free from coercion or
manipulation. This includes the right to privacy, freedom of movement, and
freedom of expression.
- Environmental
Sustainability: A clean and healthy environment is
crucial for a dignified life. Pollution, climate change, and environmental
degradation can significantly impact people's well-being and access to
basic resources.
- Indian
Constitution Article 21: The primary source,
guaranteeing the right to life and personal liberty. Though not explicitly
mentioning "dignity", the Supreme Court has broadened its
interpretation to encompass a dignified existence.
5. Conclusion
Men and women equally have the right
to human dignity and all other fundamental freedoms. However, in Zimbabwe just
like with the rest of African societies, virginity testing as a cultural rite
has been only performed on women and not men thereby having the effect of
limiting girls and women reproductive rights. Furthermore, it has also been
established that subjecting women alone to the practice of virginity testing is
discriminatory on the basis of sex as the burden is placed only on girls and
women to be chaste for the benefit of society’s morality. Thus, under such
circumstances, it is argued that the cultural practice of virginity testing
basically views women as second class citizens and subordinate to their male
counterparts thereby undermines the notion of equality as guaranteed by the
constitution itself. This inquiry demonstrated that executing virginity testing
on girls and women for whatever reason infringes on their right to equality,
human dignity, bodily integrity and privacy and as such should not be tolerated
in an open and democratic society. Virginity examinations are medically
unreliable and inherently discriminatory, and, in almost all instances, when
conducted forcibly, result in significant physical and mental pain and
suffering. It is our opinion that forcibly conducted virginity examinations have
no clinical or scientific value and constitute cruel, inhuman and degrading
treatment, and may amount to torture depending on the individual circumstances.
When virginity examinations are forcibly conducted and involve vaginal
penetration, the examination should be considered a form of sexual assault and
rape. The involvement of the health professional in these examinations is a
violation of the basic standards and ethics of profession.
[1] Virginity test’ still haunts some Indian brides
Young
members of an Indian tribe are fighting to end the 400-year-old practice 13, 2019
[2]
https://scholar.google.it/citations?user=h9tDyMwAAAAJ&hl=en
[3] Faculty of Humanities, Development and Social
Science, University of KwaZulu-Natal, Durban, South Africa.2009
https://researchspace.ukzn.ac.za/server
[4] Patterns of Contraceptive Use Within Teenagers’ First
Sexual Relationships Jennifer Manlove, Suzanne Ryan, and Kerry Franzetta
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1473988/
[5]https://www.researchgate.net/publication/282704893
Probing the efficacy of virginity testing
[6]
https://legalfundi.com/legal-question/section-14-right-to-privacy
[7]
Plessis, GA du; Nel, W. N. (11
October 2021). "The dimensional
elements of the right to freedom of religion or belief in the South African
Constitution". Journal
for Juridical Science