The Supreme Court on Monday observed that a practice such as female genital cutting cannot be constitutional as it is “solely used to make a woman more appealing to her husband,” Live Law reported. Why should a woman only make efforts to please her husband, Chief Justice of India Dipak Misra asked.
The court made the observations while hearing a writ petition against the practice. Members of the Dawoodi Bohra community had earlier moved the court saying the practice should be allowed as religious freedom is guaranteed under Article 25 of the Constitution.
“The principle of gender sensitivity is entrenched in the Constitution,” Misra said. “A practice that is engaged in solely to make a woman more appealing to her husband cannot be constitutional. In view of the numerous health hazards associated with it, the practice amounts to a violation of Article 21 which accords primacy to health.”
The bench said a person has the right to “have control over her body”, PTI reported. It also asked how one could go into the “reverse gear” when thinking of women’s rights. “This is essential to your control over your genitalia,” the court said.
The bench added that women have been subjected to a practice which subjugated them to such a level where they have to “please their husbands” only. The court said that “public order, morality and health” were grounds to restrain a religious practice under Article 25.
Attorney General KK Venugopal, appearing for the Centre, said that the government supported the plea against the practice.
Senior advocate Indira Jaising, appearing for the petitioner, said the practice constituted an offence under the Indian Penal Code and the Protection of Children from Sexual Offences Act. “Something which has been declared illegal and criminal by the law cannot the essential practice of religion,” she said.
The bench will continue the hearing on Tuesday.
The Dawoodi Bohra community in India is known to practice female genital cutting, which typically involves a cut or nick to the clitoral hood. Investigations have showed it is practised even among literate communities in Kerala. The practice, called khatna or khafz within the Dawoodi Bohra community, is defined by the United Nations as Type-I female genital cutting, which describes this as including either the cutting of the clitoral hood or the partial or total removal of the clitoris, and is usually done to girls aged between six and 12 years.
The practice is not yet illegal in India, but female genital cutting in any form has been outlawed in several countries around the world, including the United States.
The World Health Organisation has not found any health benefits to cutting girls’ genitalia and has said that it may instead cause several negative short-and-long-term consequences. WHO has said that the practice leads to infections, cysts, infertility and higher childbirth complications.