Open Access Research Article
THE VALUE OF A WOMENS VIRGINITY
Published Paper
Article Details
THE VALUE OF A WOMEN'S VIRGINITY
AUTHORED BY
- SHIVANI MAHADEVAN & DIYA ABRAHAM
Introduction
Virginity is an age-old concept that
means that a person hasn’t taken part in sexual intercourse. It is often linked
with ideas of purity, chastity and morality[1];
it is also always linked to the character of women. One of the earliest
examples that is seen in the ancient text is the story of how Vyasa rishi was
born in Mahabharata. Rishi Parashara while being ferried across a river is
overcome by lust on looking at the boat girl Satyavati, he requests her to
fulfill his need but she refused on the account that she will be shamed by
society due the loss of virginity for which the rishi promises her that he will
grant her the promise virgo intacta[2].
Whether these stories depict the truth or not isn’t up for debate but its the
concept that will be discusses in detail. The very idea of losing your
virginity will attract unparallel moral blaming and public shaming which is
usually directed only toward women. It is an axiomatic understanding that the
women’s chastity is the honor of the family. The question is why and why isn’t
the man honor not questioned? This paper will investigate the value of women’s
virginity and the legal and social consequences it attracts.
Part I:
Character Assassination
Rape is defined under Section 375 if
the IPC[3], even
without looking at the legal definition it is clearly understood in laymen
terms as a forced sexual intercourse where there is no consent of one party.
The Indian judiciary was very late in grasping this concept, in the case of
Tukaram v State of Bihar[4], the High
Court stated that because of the moral dubiousness of the victims character she
must not be a trustworthy witness. It is to note that the women was a young
tribal girl who worked in home as a maid, she ran away with a son of the family
and on the complaint of the parents, the couple was brought in for question by
the police where she was raped by a policeman and her moral dubiousness stems
from her having habitual sex[5]. It is
still not clear why her having sexual intercourse prior is relevent in a rape
case against a third party, or how a moral dubiousness has any significance in
a maater of bodliy autonomy.
The basic tenets of criminal law is
that, in a criminal proceeding the bad character of the accused is immaterial
and irrelevant unless evidence has been given that he has a good character, and
even then only to rebut such evidence of good character but the character of
rape victims or sexual assault survivors are called into question for no actual
reason[6].
Section 155(4) of the IEA provides that when a man is prosecuted for rape or an
attempt to ravish, he may impeach the credibility of the prosecutrix by showing
that she was of generally immoral character[7],
we protect the character of the accused while tearing apart the victims.
Victims who are questioned like in the Tukaram case[8]
need not be ravished once but the law subjects her once again to be ravished in
open court for the pleasure of the spectators. This is inhumane practice of
treating victims cannot go on any longer. Only in 2002 Section 155(4) of the
Indian Evidence act was repleaed[9].
Justice Chaturvedi in the case of
Mukesh Bansal v. State of UP made misogynistic remarks against the complainant;
in the FIR, the women had in graphic detail explained the uncomfortable sexual
acts that she was forced to perform at her in laws place, but the Justice
Chaturvedi was flabbergasted by the indecency in the FIR and even went as far
as to say that did not seem shameful while narrating the way she was abused[10]. Firstly,
if the acts and words of abuse narrated by the women seemed so indecent to be
heard in a civilized society by Justice Chaturvedi, then imagine being the
person subjugated to those acts. Secondly, Justice Khanna had said that
"First information report in a criminal case is an extremely vital and
valuable piece of evidence for the purpose of corroborating the oral evidence
adduced at the trial. The importance of the above report can hardly be
overestimated from the standpoint of the accused. Thirdly, why should a women
feel shameful due to the abuse meted out to her, rather the accused should feel
shameful for how they behave. In the case of Bharwada Bhoginbhai Hirjibhai v.
State of Gujarat[11] while
giving a progressive judgment, the courts decided to perpetuate old myth on how
‘Indian Women’ should be, by giving a checklist for the character of women in
rape cases. We always take one step forward but two steps back.
The commonality that occurs is the
emphasis on the virginity of a women, young unmarried virgins rape victims seem
to have favorable verdict with heavier sentencing for the accused[12]. The
issue with rape isn’t the violation of a women’s body or the trauma she
undergoes, it is about protecting the virginity of the women. The society will
ask who will marry an unchaste rape victim, while the correct question to be
asked is when will we start castrating rapists.
Part II:
Marriage Nullifies Consent
The exception to Section 375[13] is
marriage, which at the outset does not satisfy the reasonable classification
test. Why is there a difference between married and unmarried women, shouldn’t
both have a right to bodily autonomy and shouldn’t both have a right to consent.
For reasons unknown, a married women somehow have a lesser right over her own
body than an unmarried women. Home Affairs Krishna Raj had once said that
"The entire family system will be under great stress if marital rape is
brought under the law."[14], it isn’t
entirely clear why a women’s right to consent would add stress to family and if
it does, then there is a mistake in the perception about how a family must
operate. The Delhi High Court[15] had a
split decision on striking down the exception because some judges could not comprehend
that consent is only thing that matters in rape, not your marital status. These
ideas also stem from patriarchal norms and the idea that married women are not
virgins so their violation is less problematic to society as no virginity is at
stake. It is for the same reason that cases such as Bhawari Devi still does not
get justice and is important to note that the district court acquitted the
accused due to it being improbable that a husband would stand there and let his
wife be raped[16]. These
outdated notions of virginity prevent women from being treated as human beings
who can offer more than just their purity.
With the recent judgment by the
Supreme Court[17], the MTP
act recognizes marital rape and while
this judgment is welcomed for its progressive understanding, the reality is
that, this is only a long-winded way for recognizing marital rape, and
criminalization is nothing but a dream we are looking forward to. In 2022 we
are still fight for basic human right for women in India
Part III:
Virginity Test
Rape victims were subjected to the
two-finger test during medical examination, which was done to test the
virginity of the women by seeing the laxity of the vaginal muscles and the
rupture of hymen. This is an unscientific test that does nothing but subject
the victim to even more physical trauma while yielding no results in the
process[18]. Only in
2013 this test was held unconstitutional in Lillu v State of Haryana[19]. This
test rested on the basis that women who had habitual sexual intercourse are of
dubious character and required less validity in witness statement.
Virginity test have been used to test
the virginity of the newly married bride after her first night. In a recent
case in Rajasthan a rape victim was made to undergo this test by her in laws
and when she failed, she was brutally beaten and her family was forced to pay
Rs. 10 Lakhs by the khap panchayat[20]. The
Sansi community has a social practice of kukdi
pratha where a white sheet is laid in the bed of the newly married couple
and if after coitus there are no blood traces it implies that the women is
impure[21]. The
women will be shamed and beaten for her suspicious and impure nature in the
society while the actual tests are baseless. Even the Roma community in Europe
have very outdated and invasive virginity tests to test the bride’s purity
before marriage, this is usually a public affair with multiple people in
attendance to celebrate the passing of this test[22].
All these tests have been perpetuated
in the attempt to control the women’s sexuality and to make sure there is
conformity with the patriarchal standard. If the society is truly concerned
about the purity of marriage, then why aren’t men subjected to the same. Are
men incapable of being socially ‘impure’ or aren’t capable of having premarital
intercourse?
Conclusion
Wedding dresses are white to signify
the idea of a pure, chaste bride; Hindu marriages still practices the custom of
Kanyadan or the gift of a virgin to
the groom and other practices are still prevalent. Even today women are subjected
to unscientific virginity test[23] before
and after marriage to prove their purity with irretrievable consequence if they
fail. Honor killing and gender-based violence is perpetrated by the loss of
virginity for women and virgin women are sold in many countries[24]. Why are
people obsessed with women’s virginity and this obsession has gone so far as to
denying them remedy for being married non virgins or their character is put
through demeaning tests for being a non-virgin. Rape accused are largely protected
under the law than the actual victims. Women who are more promiscuous are
termed as ‘easy’ or ‘whores’ while men who do the same are usually praised.
Women are for some unknown reason are held to higher standards than men. This
backward misogynistic mindset has caused so much strife to women and hinders
the basic ideas of social equality.
[1] Schlegel, Alice. “Status, Property, and the Value on
Virginity.” American Ethnologist 18, no. 4 (1991) 719–34
[2] MLA. N.V.R. Krishnamacharya. The Mahabharata.
Tirupati: Tirumala Tirupati Devasthanams, 1983.
[3] Indian Penal Code 1860, Section 375
[4] Tukaram v. State of Bihar 1966 AIR 911
[5] Id.
[6] Babulal v. the State of West Bengal AIR 1959 Cal 693.
[7] Indian Evidence Act 1872, Section 155(4)
[8] Tukaram v. State of Bihar 1966 AIR 911
[10] Mukesh Bansal v. State of U.P., 2022 SCC OnLine All
395
[11] Bharwada Bhoginbhai Hirjibhai versus State of Gujarat
1983 AIR 753
[12] Is rape sentencing in India a joke? Judgments based
on stereotypes have played pathetically important part, 17th Dec 2016 (Accessed
on 5th Oct 2022, 5:30pm)
https://www.firstpost.com/living/is-rape-sentencing-in-india-a-joke-judgments-based-on-stereotypes-have-played-pathetically-important-part-3161060.html
[13] Indian Penal Code 1860, Section 375 Explanation
“Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape”
[14] Vakasha Sachdev, Explained: Why Marital Rape Is Not A
Crime In India (Yet), 11th May 2022 (Accessed On 5th October 5:29pm)
Https://Www.Thequint.Com/News/Law/Marital-Rape-Not-Recognised-As-Crime-In-India-Explainer#Read-More
[15] AIDWA vs Union Of India, Hridaya Nest of Family
Harmony vs UOI, Diary No. 16226/2022
[16] Vishaka v. State of Rajasthan, (1997) 6 SCC 241
[17] X vs Principal Secretary, Health and Family Welfare
Department, Govt of NCT Of Delhi, C.A 2022 LiveLaw (SC) 809
[18] Eliminating Virginity Testing: An Interagency
Statement, WHO 2018 (accessed on 5th October 2022 5:31pm)
https://apps.who.int/iris/rest/bitstreams/1157258/retrieve
[19] Lillu v. State of Haryana (2013) 2 SCR 774
[20] Rajasthan woman tortured for failing virginity test
(accessed on 5th October 2022, 5:00pm)
https://www.onmanorama.com/news/india/2022/09/06/rajasthan-woman-tortured-for-failing-virginity-test.html
[21] Deepak Sharma, First Night Means Virginity Test of
Bride: Kukdi Pratha of Rajasthan, 6th December 2021 (accessed on 5th October
2022, 5:35pm)
https://www.sinceindependence.com/rajasthan/first-night-means-virginity-test-of-bride-kukdi-pratha-of-rajasthan
[22] Emily Atkinson, What is ‘virginity testing’ and why
is it going viral on TikTok?, 6th Sep 2022 (accessed on 5th October 2022,
5:40pm) https://www.independent.co.uk/life-style/love-sex/virginity-testing-viral-tiktok-b2159942.html
[23] Daniel L Chen, Gender Violence and the Price of
Virginity: Theory and Evidence of Incomplete Marriage Contracts ( accesed on
5th Oct 2022, 3:45 pm) http://users.nber.org/~dlchen/papers/Gender_Violence_and_the_Price_of_Virginity.pdf
[24] Raina Assainar, Woman Held For Trying To Sell
‘virgin’ Daughter,September 03, 2020 (Accessed On 5th October 2022, 5:37pm)
https://www.thehindu.com/news/cities/mumbai/woman-held-for-trying-to-sell-virgin-daughter/article32508938.ece
Article Information
THE VALUE OF A WOMENS VIRGINITY
Authors: SHIVANI MAHADEVAN, DIYA ABRAHAM
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/09
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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