Gauhati High Court Denounces Two-Finger Test, Upholds 20-Year Jail for Man Who Raped Adopted Daughter
The Gauhati High Court has expressed shock over the continued use of the two-finger test in rape cases, despite the Supreme Court outlawing it more than a decade ago. The court upheld the 20-year rigorous imprisonment of a man convicted of repeatedly raping his 13-year-old adopted daughter, while strongly criticising the medical practice as unscientific and violative of survivors' dignity.
Justices Michael Zothankhuma and Rajesh Mazumdar, hearing an appeal against a July 17, 2023 conviction under the Protection of Children from Sexual Offences (POCSO) Act, noted that the doctor who examined the survivor recorded that “two fingers passed” through her hymen. In their July 23 order, the bench said, “We are surprised to learn that a two finger test has been conducted by a Doctor, even though there have been decisions by the Supreme Court holding that the two-finger test and its interpretation as to whether the same give a clear indication that the prosecutrix was habitual to sexual intercourse, violates the right of rape survivors to privacy, physical and mental integrity and dignity.”
The case dates back to April 2022, when the survivor, adopted by the accused and his wife as a young child, was first sexually assaulted. She initially told her foster mother, who allegedly asked her to keep silent. Months later, she confided in a neighbour, leading to a police complaint in September 2022. The trial court convicted the man under Section 6 of the POCSO Act, sentencing him to 20 years’ rigorous imprisonment and a fine of Rs 10,000.
The High Court relied on Supreme Court judgments in Lillu vs State of Haryana (2013) and State of Jharkhand vs Sainendra Kumar Rai (2022), which held that the two-finger test has no scientific basis and amounts to professional misconduct. The bench noted that an intact hymen does not rule out sexual violence, and a torn hymen cannot be treated as proof of prior sexual intercourse, as it may result from other causes. “The Supreme Court had ruled that the pre-vaginum test has no scientific basis and re-traumatizes survivors. It also directed that any medical professional conducting the two-finger test would be guilty of professional misconduct,” the court said.
In 2014, the Union health ministry issued guidelines stating that the two-finger test must not be conducted for establishing rape or sexual violence, and that the size of the vaginal introitus has no bearing on such cases. The guidelines also require the survivor’s (or guardian’s) consent for any medical examination, though they are not legally binding.
The court found the survivor’s testimony credible and consistent, corroborated by medical and other evidence. It dismissed the appeal, noting that the prosecution had proved its case beyond reasonable doubt.
