New Delhi: The Supreme Court on Monday orally questioned the practice of female genital mutilation (FGM) of minor girls in the Dawoodi Bohra Muslim community and observed “a woman does not have to live her life only for a marriage and a husband.)

FMG or “khatna” is a practice prevalent among the Dawoodi Bohra religious community of Shia sect. This practice is an age-old tradition in this community to mark the arrival of womanhood.

At the outset, the Chief Justice Dipak Misra, heading a three judge bench observed that women are not chattels and their subjugation to please their husbands must pass the test of constitutional morality and right to privacy.

The bench, which also included justices A.M. Kanwilkar and D.Y. Chandrachud, was hearing a PIL filed last year by an advocate Sunita Tihar seeking a ban on Female Genital Mutilation.

The CJI observed that in the guise of FMG or circumcision as no one can use the religious practices to touch a female’s body and violate integrity of her body part. The CJI said “this is violative of Article 21 (right to life) of the Constitution as the child is put to trauma. There are possible health hazards. When this court is pushing for affirmative action in favour of women, how can we go against them.”    

Justice Chandrachud added “religious practices like FGM cannot pass the test of Article 25 (1) of the Constitution, which is subject to health issue. Something, which is treated as a crime cannot be treated as an essential religious practice. This practice cannot continue only because women need to get married. A woman may have several other obligations too.”  

Attorney General K.K. Venugopal sought a ban on female genital mutilation (FGM) on the ground that this “religious practice” has already been banned in 42 countries. He said the government was in favour of a ban on religious practices that force girl child to undergo genital mutilation or circumcision.

The A-G said 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 42 countries including USA, UK, Australia, Canada and 27 African countries and it should not be allowed to continue.

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 Rakesh Khanna and Indira Jaising 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 Protection of Children from Sexual Offences 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. Arguments will continue on Tuesday.