Sr. Abhaya Case : Was it necessary for CBI to prove virginity of a nun ?

On the facts of this case [Sr. Sephy Vs. Union of India, 2009 (1) KLT 126 : 2009 (1) KLJ 234 : ILR 2009 (1) Ker. 124 : 2009 (1) KHC 118] the Court viewed that, a virginity test was totally unnecessary. It was unfortunate that the third accused was subjected to such a ridicule, which does not serve any purpose, other than making an attempt to throw mud on a nun in public.

# Virginity Test

“It is even more unfortunate that the private parts of a nun are made to be discussed in public, without serving any purpose for the case. The virginity test has helped only to make a nun a subject of public ridicule and nothing more. I really wonder whether CBI will embark upon the task of proving potency of the alleged male partners! I maintain my judicial restraint because, this is only a bail application, the Court said.

In the instant case the Kerala High Court held that “for the purpose of bail, it is not necessary to go into the various details in the case diary, but it is enough that a prima facie case is made out.”

Justice K. Hema observed that “an application for bail, the bail-court should exercise its discretion in a judicious manner and any such disposal must be by passing an order, supported by good reasons.”

# Disposing of a bail application.

It is absolutely essential that the order in an application of bail must contain a brief examination of the existence or otherwise of a prima facie case. The court shall indicate in the order in an application for bail, reasons why bail is being granted or is being rejected, particularly where the accused is charged of having committed a serious offence. Any order which is bereft of such reasons would be bad in law, since there will be lack of application of mind.

At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken.

This is mainly for the reason that the court has a duty to ensure that neither the accused nor the investigation/prosecution is prejudiced by any of the observations made by the court. If the case is at the initial stage of investigation, it is likely that any findings which may be entered into by the court in the order for bail is likely to affect or prejudice either of the parties adversely or favourably.

Therefore, the court shall, as far as possible avoid entering of any definite finding or reaching any conclusion on facts, at the early stage of investigation.

# Facts of the Case

About one-and-half decades ago, dead body of a nun, Sr. Abhaya, who is an inmate of Pious Xth Convent Hostel was extricated from a well situated in the hostel-compound. The hostel is a ladies’ hostel run by the nuns. There were altogether 123 inmates in the hostel who include, 20 nuns.

The third accused is a nun, and she was residing in the hostel on the ground floor(basement/cellar region where kitchen, dining hall, etc., are situated). She was assisting Sr. Helen who was in charge of the mess/kitchen in the hostel and both of them were occupying the same room allotted to them in the hostel. On the crucial day, Sr.Helen was not present in the hostel.

Third accused was allegedly having clandestine affair with two Christian priests who were teaching in a college. The first accused was teaching in Psychology and the second accused, in Malayalam.

On the crucial day, on 27.3.1992, since Sr. Abhaya was preparing for examination Sr. Shirly woke her up as promised, early in the morning at 4 am. Thereafter, Sr. Abhaya went to toilet and then, to the kitchen to take cold water from the fridge to smear it on the eyes and face to keep her awake.

But, when Sr. Abhaya went to the kitchen, she allegedly saw the two priests and the nun (A1 to A3) in a compromising position.

Fearing exposure, first accused allegedly strangulated her by her neck, third accused (nun) beat her with an axe, and all the three took her by force and dumped her in the well in a conscious state and she died due to drowning.

Advocates M.K. Damodaran (Sr.), Alan Papali, Sojan Micheal, Gilbert George Correya, Dhanya P. Asokan, B. Raman Pillai, R. Anil, V.B. Sujesh Menon, Joseph P. Alex, Anil K. Muhamed, C.P. Udayabhanu, M. Anil Kumar, Preethi K. Purushothaman, Majo K. Jacob appeared for the petitioner and M.V.S. Namboothiry, Standing Counsel for C.B.I., advocates A.X. Varghese and A.V. Jojo appeared for the respondents.