GENITAL CHECKINGS AS EVIDENCE IS AGAINST PRIVACY RIGHT

GENITAL CHECKINGS AS EVIDENCE IS AGAINST PRIVACY RIGHT


1. Brief Description of Case

a. Applicant : Annapurna Rana writ no 2187/ 053
b. Defender : Including Kathmandu District Court
c. Decision done by honorable Justice : Shree Arbindanath Acharya, Shree Rajendraraj Nakkha
d. Decided date : 2055/2/25/2 Monday
e. Decision opinion : writ continue
 

  2. Applicant’s Demand

-Annapurna Rana had filed a case in the Kathmandu District Court seeking ‘sustainance’ from the family property administered by mother Ambika Rana the ‘legal heir’ brother Gorakh Bahadur Rana (who last year married king Birendra’s only daughter, Shruti)

-The respondents had claimed that the petitioner had already been married in Naini Tal, have borne a child.

-The proof of marriage and the delivery of a child can themselves prove whether or not the person in question is married, examination to determine whether her virginity was intact will be loss of the courts time. ”The court has pronounced that the right to privacy as provided in the constitution was an invioable right except as provide in the laws.”

3. Written Answer/ reply from the defender

a. According to the writ Applicant, she claimed that she must get her family property but she herself on her own decision accent that she is married and she has a child.

b. Defender claimed, she should prove her marriage and the delivery of child and her virginity in maternal home by 3 gynecologist.

c. Against the decision made in appellate to Court, Patan. According the Act 17 she went to Kathmandu District Court where her case was dismissed/ rejected.

d. Ambika Rana according to proof Act, 2031 stated that we can check applicant physical test and lower courts have also decide to do.

4. Judicial Solutions Base and Decision

a. Can a court go beyond anybody’s right to privacy or not?

b. Is the proof of sex organ check relevant legally to the command or not?

c. Permission from victim for his/her physical examining is needed or not?

  According to Article 22, right to privacy:

. Except as provided by law, the privacy of any person his/her home, property, document, data, correspondence or matters relating to his or her character shall be invoilable.

. If there is no legal provision than law has not given rebet to ask for physical test.

Answer to the second question

. According to proof Act 2031, clause 3 has stated that for the solution of case we can check according to what is required as proof.

. But checking the sex organ of female is itself sensitive as well as question in public interest.

. It has already been stated that she has married, has a child and she has given so, there doesn’t remain and she has given record of Naini Tal Hospital of India, So, there doesn’t remain any necessity of the checking.

Answer to the third question

. The court is silence in third point but there is clear provision in Article 22, that no physical test can be taken without getting the permission of the victim.

The following precedent were establish by this case.

 •a. Marriage certificate or marriage registration or traditional marriage is only legal marriage but sex relation comes under personal freedom having a child before marriage cannot be stated as a marriage. So precedent established that woman living with a man and maintaining a physical relationship with him is not necessarily his wife and is married.

•b. According to Article 22, female sex organ check is a breach of freedom of privacy.

  

5.Importance of Decision: . 

According to the Article 12 of Human Rights declaration, anybody’s personal secrecy, home or correspondence  shall not be interfere by any one

. Without legal Agreement nobody is allowed for physically and scientific enforcement for the check.

. That’s why to keep the secrecy of her personal relation her uterus check shall not be allowed.

. Article 22, Right to privacy.

. Right to Privacy is directly Related to Right to Freedom.

. If the decision of the court is implemented her right of freedom may be in fluxed.

. Ovary is the private organ and the Right to Privacy is guranteed by our constitution.  

Note; This case has given legalise for the sex freedom before marriage.

Conclusion

. This case has positive and Negative points on their own place. But in context of Human Rights, this decision should be appreciated. It preserves the Right to Privacy. Fundamental Rights of Nepali Citizen and Human Right both have preserved in this case. It has preserved Nepalese personal aspiration, conduct and behaviour and has helped in the development of Human Civilization.

In my opinion the case is good example for the good justice because according to Article 22, we can exercise Right to Privacy. Human Right, and International laws and strongly encourage to exercise Right to Privacy and Right to Freedom. 

     

DONE BY -    Amita Chaulagai