Dawoodi Bohras and the practice of female genital mutilation: All you need to know

Dawoodi Bohra community is a sect within Shia Islam known for trading and business acumen. Their infamous practice, female genital mutilation, was heavily critised by the Supreme Court in August this year. 

The top Court questioned the practice of female genital mutilation of minor girls in the Dawoodi Bohra Muslim community, saying it violates the bodily "integrity" of a girl child. A section of Dawoodi Bohra Women have filed a case in the Supreme Court seeking a ban on FGM saying the practice was violation of human rights of children and women. A Delhi-based lawyer has also filed a plea opposing the practice. 

The Supreme Court in August said the FGM of minor girl leaves a "permanent emotional and mental scar" on them and the practice may be held as violative of dignity of women as prescribed in the Constitution.

A bench comprising Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud referred to constitutional schemes as interpreted by the apex court over a period of time and said "the fact that the practice is essential religious practice does not make it constitutional".

"You just cannot inflict any kind of injury to another person," the bench said, adding that for husbands, young girls should not go through all this. "This kind of mutilation leaves a permanent emotional mental scar on small girls. You snip her genitalia," the bench said.

Earlier in July, Attorney General K K Venugopal, representing the Centre, said that the practice causes irreparable harm to girl children and needed to be banned.

He told the bench, which also had Justices A M Khanwilkar and D Y Chandrachud, that countries like the USA, the United Kingdom, Australia and around 27 African countries have banned this practice.

On July 30, the Supreme Court said the practice of FGM in Dawoodi Bohra community is violative of Article 21 and Article 15 of the Constitution that guarantees protection of life and personal liberty and prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

The top court 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".

Senior advocate A M Singhvi, appearing for a Muslim group, said the matter be referred to a constitution bench as it pertained to the issue of essential practice of the religion which needed to be examined. Singhvi referred to the practice of male circumcision (khatna) in Islam and said that it has been allowed in all countries and this is the accepted religious practice and sought adjournment  of the hearing.

"Why and how should the bodily integrity of an individual can be part of the religion and its essential practice," the bench asked, adding the practice violated the "integrity" of a girl child's body."Why should anybody else will have any control over the genitals of an individual," it said.

The court had on May 8 agreed to examine the issues raised by Delhi-based lawyer Sunita Tiwari by saying that the practice of female genital mutilation was "extremely important and sensitive".

It had issued notices and sought replies from four Union ministries, including the Woman and Child Development, besides Maharashtra, Gujarat, Rajasthan and Delhi where Dawoodi Bohras, who are Shia Muslims, predominantly reside.

FGM is performed 'illegally upon girls'

Tiwari, in her plea, has sought a direction to the Centre and the states to "impose a complete ban on the inhuman practice" of 'khatna' or "female genital mutilation" (FGM) throughout the country.

The plea has sought a direction to make FGM an offence on which the law enforcement agencies can take cognisance on their own. It has also sought to make the offence "non-compoundable and non-bailable" with provision for harsh punishment.

The ministries of Law and Justice, Social Justice and Empowerment have also been made parties to the plea which referred to various conventions of the United Nations, to which India is a signatory.

The practice of female genital mutilation resulted in "serious violations of basic fundamental rights of the victims who in these cases are minors," the plea said.

The FGM is performed "illegally upon girls (between five years and before she attains puberty)" and is against the "UN Convention on the Rights of the Child, UN Universal Declaration of Human Rights of which is India is a signatory", the plea said, adding the practice caused "permanent disfiguration to the body of a girl child".

"The practice of 'khatna' or 'FGM' or 'Khafd' also amounts to causing inequality between the sexes and constitutes discrimination against women. Since it is carried out on minors, it amounts to serious violation of the rights of children as even minors have a right of security of person, right to privacy, bodily integrity and the freedom from cruel, inhumane or degrading treatment," the plea said.

"It is a ritual performed on every girl child within the Dawoodi Bohra religious community without any medical reason and does not have any reference in the Quran.

"It violates the rights of the child and human rights. It also violates the Universal Declaration of Human Rights and is a crime in the Unites States of America under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and now a crime in Australia and some other countries as well," it claimed.

During the brief hearing, Venugopal reiterated the Centre's stand and said that the practice violated various fundamental rights of the girl child and moreover, such kind of genital mutilation has serious repercussions on their health.

Bohra women's group defends 'khafz'

A group of Dawoodi Bohra Muslim community members in August told the Supreme Court that the courts should not decide the constitutionality of a centuries-old religious practice of female circumcision through the public interest litigation (PIL) route. 

The group said female circumcision is practised by a few sects of Islam including the Dawoodi Bohra community and the validity of this be examined, if at all, by a larger Constitution bench.

The organisation issued a statement in the wake of Court of Criminal Appeal in New South Wales in Australia in August overturning the conviction of three people accused of FGM. The court ruled that the traditional Dawoodi Bohra practice of 'khafz' (female circumcision) does not amount to FGM.

The group, Dawoodi Bohra Women's Association For Religious Freedom (DBWRF), said that khafz was a harmless religious ritual that was being followed for centuries, FGM was unwarranted and it should be abolished.

In a statement issued in August, secretary and spokesperson of DBWRF, Samina Kanchwala, said, "Khafz is a completely harmless religious ritual followed for centuries and this historic judgement will be welcomed by Dawoodi Bohras around the world, who are struggling to inform public opinion that is intent on denying women their right to practise their religious observance."