New Delhi: With the Centre seeking ban on female genital mutilation (FGM) on Monday, the Supreme Court also indicated that it was opposed to FMG or circumcision as no one can use the religious practices to touch a female's body and violate integrity of her body part.
FMG or ‘khatna’ is a practice prevalent among the Dawoodi Bohra religious community of Shia sect, as it is a crime and punishable offence. This practice is an age-old tradition in this community to mark the arrival of womanhood.
Attorney General KK Venugopal, appearing for the Centre told a Bench of Chief Justice Dipak Misra and Justices AM Kanwilkar and DY Chandrachud the government was in favour of a ban on religious practices that force girl child to undergo genital mutilation or circumcision.
Justice Chandrachud who authored the ‘right to privacy’ judgment orally observed, “Why should anyone have the authority to touch the female’s genitals.”
He said, “no one can use religious practices to touch a female’s body and violate integrity of her body part.”
When it was pointed out that girls are subjected to FMG at a very young age, CJI Dipak Misra observed that such a thing, which is an offence under the Protection of Children from Sexual Offences (POCSO) Act, couldn’t be a matter of compulsion by anyone. Can such a practice be imposed on females, the CJI asked?
The AG made his submission during the course of hearing of a petition filed by advocate Sunita Tihar seeking a ban on FMG as it is illegal. The AG while supporting the plea of the petitioner asked the top Court to ‘step in and issue directions’ on the practice of FMG.
The Centre, he said has filed a counter affidavit stating that the FMG is a crime with a punishment of seven years of imprisonment “under the existing laws don’t permit FMG and that the court can further clarify on the matter and issue guidelines.”
He also pointed out that the United Nations has deprecated this practice and FMG has been banned in USA, UK, Australia, Canada and 27 African countries and it should not be allowed to continue.
Senior counsel Abhishek Manu Singhvi, who appeared for Dawoodi Bohra community, however justified FMG contending that it has the sanction of religious texts. It is an essential aspect of Islam and cannot be subjected to judicial scrutiny. He said he would produce religious texts to demonstrate that this practice has been followed for centuries.
The petition filed by the advocate described the practice as “inhuman” and “violative” of girl’s rights under the Constitution’s Article 14 (Right to Equality) and Article 21 (Right to Life).
It sought a direction to declare it illegal and unconstitutional, non-compoundable and a non-bailable offence. It asked the court to frame guidelines to curb the practice and to issue directions to the state police chiefs to take action against those who indulge in such practice.
Senior Counsel Anand, appearing for the petitioner submitted that Kerala and Telangana governments have started investigating about this practice prevalent there. Taking note of this submission, the Bench issued notice seeking their response. The court had earlier issued notices to the States of Maharashtra, Gujarat, Rajasthan and Delhi.
It was submitted that under the current laws, a complaint can be registered under IPC Section 324/326 for causing grievous hurt or assault but there are no specific provisions that deal with such gender specific violence. Further Section 3 of the POSCO Act, children are protected from any sort of penetrative assault using an object.
It was argued that there should be provisions against people who aid and abet such practices. The Bench asked Singhvi to produce the religious documents in support of his arguments and posted the matter for further hearing on July 16.