Madras High Court issues guidelines on male potency tests, juvenile marriage cases

CHENNAI: The Madras High Court directed all the district and sessions courts, including special courts dealing with sexual offences cases, to not issue orders for conducting a male potency test against the accused unless he raises it as a ground for innocence.

The director general of police (DGP) should send a circular to all the police stations across the State to strictly follow the direction to not insist the accused undergo a male potency test and the doctors also should ensure that no such test is undertaken, directed a special bench of Justice N Anand Venkatesh and Justice Sunder Mohan while hearing cases regarding how to tackle the romantic relationship cases involving two juveniles.

Additional public prosecutor (APP) R Muniyapparaj made a submission that two finger test or per-vaginal examination is completely prohibited in the State in compliance with the earlier order of the court issued on June 15, 2024.

Additional Advocate General (AAG) P Kumaresan on behalf of the medical and rural health services department submitted that it finds it difficult to follow the earlier order (June 15, 2024) that the foetus of 24 weeks should be completely handed over to forensic science laboratory (FSL) and foetus beyond that period, the femur alone should be sent for test and retain it there until the completion of the sexual assault case.

It was submitted that most of the local hospitals lack the facilities to separate the femur from the foetus and the FSL also finds it difficult to retain the foetus due to lack of required facilities.

After the submission, the bench ordered that the hospitals which couldn't separate the femur can send it to the hospitals which has the facilities.

It was brought to the notice of the court that in most cases when two minors (boy and girl) get married, the minor boy is mechanically booked under the Prohibition of the Child Marriage Act, 2006, further, he is sent to the Juvenile justice board (JJB) and finally confined in observation homes.

After hearing the submission, the bench wondered how the minor boys could be booked under the Prohibition of the Child Marriage Act, as it only attracts when a major marries a minor. The bench directed the DGP to instruct the police personnel not to arrest the minor boy and not send them to JJB.

It said the JJB also shouldn't mechanically issue orders to send the minor boys to the observation and directed them to follow the procedure issued by the court in this regard.

The bench posted the matter to March 14, to decide the matter regarding prohibiting the leakage of sexual assault victims' identity on public forums.

In November 2022, a division bench led by Justice PN Prakash decided to hear the cases involving juvenile romantic relationships after a juvenile boy tied 'Thali' to a juvenile girl in Chidambaram.