In Atif Zareef, the victim was abducted while travelling and gang raped by several men. During cross examination of medical officer, virginity of victim was questioned to shake her credibility.
Held: The Supreme Court declared “two-finger test/virginity testing” unconstitutional, unscientific, and violative of dignity. It reframed rape jurisprudence to reject moral character as legally relevant, affirming that every woman – regardless of sexual history -is entitled to equal protection of the law.
Selected Passages:
“In a criminal trial relating to rape, it is the accused who is on trial and not the victim. The courts should also discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.
Dragging sexual history of the rape survivor into the case by making observations about her body including observations like ‘the vagina admits two fingers easily’ or ‘old ruptured hymen’ is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) and Article 14 of the Constitution… reporting sexual history… discredits her independence, identity, autonomy and free choice thereby degrading her human worth.
A woman, whatever her sexual character or reputation may be, is entitled to equal protection of law. No one has the license to invade her person or violate her privacy on the ground of her alleged immoral character… The real fact-in-issue is whether or not the accused committed rape on her. If the victim had lost her virginity earlier, it does not give to anyone the right to rape her.”
PLD 2021 SC 550