The Supreme Court today questioned the prevalent practice of female genital mutilation (FGM) of minor girls in the Dawoodi Bohra Muslim community, saying the women cannot be "subjugated" to the level where they have to "please" their husbands only.
A bench headed by Chief Justice Dipak Misra, which was hearing a plea seeking a ban on the practice, also referred to fundamental rights including Article 15 (prohibition of discrimination on grounds like caste, creed and sex) under the Constitution and said a person has the right to "have control over her body".
The bench wondered and said, "when you are thinking of women (then) how can you go into the reverse gear".
Attorney General K K Venugopal, appearing for the Centre, said that the government supported the plea against the practice of FGM.
"Irrespective of how it (FGM) is performed, the issue is that it violates fundamental rights and more particularly Article 15," the bench, also comprising justices A M Khanwilkar and D Y Chandrachud, said.
"This is essential to your control over your genitalia. This is essential to ensure your control over your body," the bench said, adding that women have been subjected to a practice which subjugated them to such a level where they have to "please their husbands" only.
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The bench then referred to Article 25 and said that it provided "public order, morality and health" as grounds for restraining a person or religious body from practising a religious practice.
Senior advocate Indira Jaising, appearing for Masooma Ranalvi, a lawyer who herself has been a victim of the FGM, said the practice of "removal of the clitoral hood" for non-medical purposes of a minor constituted an offence under the IPC and the Protection of Children from Sexual Offences Act (POCSO Act).
"Something which has been declared illegal and criminal by the law cannot the essential practice of religion. This constituted an offence under the IPC and the POCSO Act," she said.
She said that even the guardians of minor girls cannot give their consent to the FGM for "non-medical purposes" and moreover, Islam says that the laws of the country have to be respected.
Dealing with the locus of Ranalvi to intervene, Jaising said she has been the victim of FGM and has been "ex-communicated" from Dawoodi Bohra Muslim community for raising her voice against the "dehumanising practice".
She said her plea was restricted to FGM and would not go into male genital circumcision or 'khatna' when Justice Chandracud said that there was some scientific belief on "male genital circumcision".
"Under-inclusion may be permissible, but over-inclusion cannot be permitted," the bench said when it was pointed out that the issue of male genital circumcision was not part of the petition.
Ranalvi, in her plea, said that she was subjected to the FGM and "all the women in her family, at least 28 of them, have been subject to FGM/Khafz. The intervenor has founded an organization of women, most of whom are survivors of FGM/Khafz called 'WeSpeakOut' which is actively involved in creating awareness on this secret practice."
"Frame appropriate law/guidelines for prevention of FGM, procedure of complaining about FGM/ cutting and protection of the survivors of FGM/cutting...," it said, adding "Any person who aids, abets, counsels or procures any girl/woman to carry out such procedure should also be penalised."
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