Tuesday, January 31, 2012

Importance of Medical reports in Paternity,Impotence ,Sterility&Sexual offences cases.

Importance of Medical reports in Paternity,Impotence,Sterility&Sexual offences cases.

Overview :  
The court faces herculean task while adjudicating highly complicated &highly contested cases and judges faces litmus test in dealing  cases of paternity, impotent,infertility or sexual offences,when no other reliable evidence is available ,only available corroborating piece of evidence is medical evidence to prove the guilt of the person or adjudicate the sensitive issue pending before the court. 

Most complicated &typical cases not only attracts lawyers and academicians interest,but also arouses curiosity among the general public through constant media coverage;
  • Paternity &Legitimate[through DNA technology] to prove children are not illegitimate ,born with in wed lock or determine biological father or mother.
  • To declare husband impotent[incapable of sexual intercourse]

  • To declare women infertile & issue of virginity

  • To decide sexual offences cases-especially rape accused pleads that there was consent to sexual act ,medical evidence plays crucial role prove or disprove false charges of rape.

The panel of expert doctors or doctor give expertise report of the issues involved in such cases.



Paternity &Legitimate:


The question of legitimate or paternity plays crucial role in  cases of inheritance of property &legacy of the family,more than that, it will become a prestige or an emotional issue for a women or a child or adult,no child will prefer to call himself or herself illegitimate ,no women will bear stigma of being called unchaste women.
There is case pending against one of prominent Senior national leader for declaring him as biological father of the man.


The children born out of lawful marriage is called legitimate, As per Indian Evidence ,Act S.112 child born during continuing marriage  with in 280 days of divorce or death is presumed to legitimate or proved otherwise ,it is illegitimate child.
The world is facing science and technology revolution,the newer technologies like DNA /finger printing technology is helping the courts and prosecution in high profile complicated cases.One of the most complicated cases are paternity &legitimate case,the victims approach the court to declare that Mr. X is their biological parent and victims approach court their child is born with in the wedlock ,not as a result of extra-marital affair, also to prove that child is not bastard or illegitimate,when husband alleges he is not biological father child due to various reasons non- access,physically incapable of begetting child ,blood groups are not compatible.
A women can appraoch court to declare particular man to be father of her child,magistrate can award maintenance, but medical test like blood test is compulsory in such cases,there is no clear law,where husband can be forced to give blood.



Impotency: 


Impotency is the inability of a male to perform sexual intercourse,sterility is inability of male beget a child., medically ,a 9 yrs boy  to 90 yrs man is fertile,if sperms are present in semen ,the impotency &sterility is one of the ground to seek divorce under Hindu Marriage Act ,1955 and Special marriage Act,the wife alleges the husband is impotent and unable to consummate the marriage ,due to said impotency or sterility ,some times, husband denies that he is impotent and he counter alleges that his  wife is infertile ,then in a such scenario,concern court may refer couple to a panel of doctors for medical examination to elicit the expert opinion on their allegation of impotency &infertility.

The opinion of impotent is inferential,after examination of male genital organs.if doctor does not find any physical abnormalities ,gives an opinion that he is capable of sexual intercourse,the absence or poor physical development of penis may result impotent due to genetic defects.there is no such thing diminished potency or impotency,impotency may result to due to physical as well as mental diseases.in case of sterility ,examination of semen is essential.


The defence of impotency also pleaded in case of rape,adultery, and unnatural offences. 

Women Fertility and virginity  issue:  


This is age of surrogacy ,test tube baby advance fertility treatments[IVF],In medical sense ,women will be fertile from the puberty to menopause,there are instances children are born in age group of 50's.Any defect of sexual organs [vagina ]clearly seen and same will be recorded in medical opinion,some times,physical defects like malformed sexual organs [absence of vagina] /organic defects may result infertility or over over-exposure to  X -Rays may result infertility.
Virgin is female,who never experienced sexual intercourse,the question of virginity arises in cases of nullity of marriage,divorce,defamation and rape.however it is difficult to diagnose virginity,merely physical examination may not useful,there may be true virgin or false virgin,some time hymen may ruptured ,specially sportswomen ,due to exercises like cycling or injury, ,some times hymen may not rupture even during first sexual intercourse or several intercourse.The signs of virginity intact of hymen ,narrow vagina normal conditions of fourtchette and posterior commissure.

The absence of intact hymen or unruptured  hymen  is a presumption not a  absolute evidence of  virginity. 

It is very discriminatory to conduct virginity test before marriage or jobs,such test are banned in some countries.

In land mark Air Hostess case,The Supreme Court of India faulted AIR INDIA employment policy, imposing condition that Air hostess should be virgin after employment,as one of per-condition of employment,it was struck down on the ground that it is unconstitutional and highly discriminatory,it is case of gender  discrimination to women.
This verdict is highly regarded for upholding the concept of gender justice
Banned in India: The medical Examinations to test for previous sexual activity were commonly performed in India on the rape victims,it was banned on 29th of January, 2012.Human Rights Watch "had strongly criticized the test as "degrading and unscientific” and a second assault on traumatized women, and raised concerns about Indian courts bringing views of rape victims' general moral character into their rulings"
The virginity test is not real indicator of recent sexual activity and most women rights activists sought ban on it.



Sexual Offences :


As per Indian Penal Code ,A man commits rape if he has intercourse ,against her will  or with out consent or consent obtained out of fear, ,intoxication like drugs/alcohol  or unsoundness of mind or misrepresentation or fraud like  false promise of marriage ,The slightest penetration of penis is rape with or with out emission of semen.some time ,the rape can be committed with out any injury.a young boy or old man can commit offence of rape.the victim of rape can be child or old women ;On rape ,United Nations says : "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive."
Rape  can be vaginal, oral, or anal penetration by the penis or any other object without consent of the other person,most experts opined definition of rape should be changed.


Important points in medical report  : 


1.The cloths: cloths of women provides strong indication of intercourse,condition of cloths ,loss of buttons ,the cloths can be damaged or torn conditions,all foreign particles found on cloths like semen,hair or blood,,in case of murder after rape ,naked body or semi naked body or torn cloths or disarranged ,it is indication  that women has been brutally raped and murdered to cover up crime.


2.Marks of violence: In case of struggle ,injuries or wounds on the body viz mouth,throat,lips,chest thighs,legs,hands,shoulders,breast or  bite marks causing bruises /cuts on nipples,neck,shoulders,chest wall,lower abdomen ,upper thighs etc.presence of blood or oozing of blood from vagina during violent rape. 
The physical signs of ordinary rape and gang rape are clearly visible  through physical examination of the victim.when two or more men over power women and commit rape ,there can be no resistance from the victim or victim may faint after gang rape.




3.The blood stains and seminal  stains or other injuries like hymen rupture /tear.


4. Venereal disease [esp.accused person]


5.Examination of accused man ,whether  he is capable of performing sexual intercourse ,especially man claims that he is impotent&pleads innocence or marks of violence on the accused in case of resistance.  


6.The  examination of vagina of victim through finger called "two finger test",there is lot debate about this test,many women activists seeking ban on "two finger test" as medical evidence of recent sexual activity,it is humiliating women and invasion of her privacy.It is human rights violation of women.
“The word finger testing sounds rude and is not used in the format now. The PV examination will be done only if the doctor feels that it is necessary and that too with the consent of the victim,” said a senior official in the Health Ministry of India,ministry made it optional,even  changes have also been made in the way description of clothes was made in old format. In the old  format, the description of clothes worn by victims included whether they were “attractive” or “rags” or were there “fresh tears, stains of blood/semen/mud, etc” on them.


7.Rape victim suffers from shock,trauma,and may also suffer from epileptic fits ,convulsions or mentally disturbances or even death may occur due to shock or bleeding or grave injuries to genitals.


The legal proof is important not a medical proof as rape is not medical diagnoses,no doctor can give opinion of rape ,the doctor can only state recent of sexual activity or injury or intoxication,it is very difficult to probe rape as witness are not available to corroborate the victim story,only circumstantial evidence are presented.There can true story of rape or false allegation of rape.The false rape can be disproved through medical evidence.  


The medical reports plays very important role in many complicated cases and new medical technology is helping the courts in resolving many contentious issues like  rape,paternity ,legitimacy etc. 

Disclaimer : This is not reference material or expert opinion ,only a informative piece of article.

References :


  • Dr.K.S N Reddy : The Essentials of Forensic Medicine and Toxicology.
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