Chandrachud

On 31st October 2022, in its recent judgement titled The State of Jharkhand versus Shailendra Kumar Rai @ Pandav Raidated (Criminal Appeal No 1441 of 2022), a division bench of the hon’ble Supreme Court comprising of hon’ble Justices DY Chandrachud and Hima Kohli has equivocally pointed out that “whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case.” The Hon’ble Bench further objected to the insensitive and unscientific practice of conducting a “two-finger test” and declared that “any person who conducts the “two-finger test” or per vaginum examination while examining a person alleged to have been subjected to a sexual assault shall be guilty of misconduct.” The Hon’ble justices went on to observe that “this so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity…….. The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth – a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman’s testimony does not depend upon her sexual history.”