Ban on Female Genital Mutilation or Khatna: A Comment

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The practice of Female Genital Mutilation (FGM) or Khatna or Khafd or Female circumcision on girl child above the age of 5 years and before attaining puberty performed in India among Dawoodi Bohras, is violative of the basic human rights of the child. India is a signatory to the UN Convention on the Rights of the Child, the UN Universal Declaration of Human Rights and the UN resolution 2012 and also bound by the WHO guidelines where FGM is treated as illegal. The successive governments even after a lot of objection raised by the victims and social activists failed to take appropriate action against this monstrous tradition practiced for long. This act is performed as a ritual among the Dawoodi Bohras Community and has no clear reference in the Holy Quran. It is a systemic practice ingrained in the community for a long period of time.It is rooted in patriarchy and there is a stern belief that female sexuality is destructive to the patriarchal order and their sexual desire should be controlled through performing FGM. It causes physiological harm to the mind of the young child. This inhuman act is a serious violation of the human body and causes permanent disability or deformity to the body of the child when she becomes adult. It is based in the deep rooted inequality between sexes and is an extreme form of discrimination against women’s rights. The UN General Assembly passed a resolution banned FGM all over the world to protect the best interest of the child.
In India, a film ‘A pinch of skin’ was made by Priya Goswami in 2012 about FGM and has been played in internet nationally and internationally. She interviewed 20 women from the Bohra community.Most of these women were conditioned to believe that it was necessary and some said it was a rite of passage to become Bohra women. Subsequent to that many victims raised their voice through social media and through newspapers. But the authority has failed to take any action to stop this practice.
As per World Health Organization, FGM is categorized into 4 types [1]
Type 1: Often referred to as clitoridectomy, this is the partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals), and in very rare cases, only the prepuce (the fold of skin surrounding the clitoris).
Type 2: Often referred to as excision, this is the partial or total removal of the clitoris and the labia minora (the inner folds of the vulva), with or without excision of the labia majora (the outer folds of skin of the vulva ).
Type 3: Often referred to as infibulation, this is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoris (clitoridectomy).
Type 4: This includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.”
Many countries have banned this practice. Australia and many countries in the African Region have passed legislation banning it as illegal.In the United States of America it is  a crime under the Illegal Immigration Reform and Immigrant Responsibility Act, 1996. FGM is a federal offence in the United States of America, contained in Title 18 Part 1 Chapter 7 Section 116, which is extracted below[2]:-

(a)               “Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.
(b)               A surgical operation is not a violation of this section if the operation is—
(1)        necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or
(2)        performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.
  (c)      In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual”.
Scotland has prohibited FGM as per the Prohibition of Female Genital Mutilation (Scotland) Act 2005[3]. The following is extracted from the Scottish Act:
                              Offence of female genital mutilation
 “(1)A person who performs an action mentioned in subsection (2) in relation to the whole or any part of the  labia majora, labia minora, prepuce of the clitoris, clitoris or vagina of another person is guilty of an offence.
(2) Those actions are—
(a)   excising it;
(b)   infibulating it; or
(c)   otherwise mutilating it.
        (3) No offence under subsection (1) is committed by an approved person who performs an action mentioned in subsection (4).
(4)Those actions are—
(a)a surgical operation on another person which is necessary for that other person's physical or mental health; or
                             (b)a surgical operation on another person who is in any stage of labour or has just given birth, for purposes connected with the labour or birth…”

England has also prohibited it through theFemale Genital Mutilation Act, 2003 (England)[4]
“1)  A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.
(2)   But no offence is committed by an approved person who performs—
(a)   a surgical operation on a girl which is necessary for her physical or mental health, or
(b)   a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth...”

In India there is no specific law banning FGM.  Though it is an offence under the general law, ie the India Penal Code under sections 320,322,334,335,336,338 and 340 the police doesnot register cases if it is reported or published in news papers.  Protest has been initiated from various parts of the country and in 2016, Advocate Sunita Tiwari, a public interest lawyer and activist filed a writ petition under Article 32 of the Constitution of India before the Supreme Court of India for directions for a complete ban on the illegal and inhuman practice of FGM as it violates the fundamental rights enshrined in Article 14 & 21 of the Constitution of India and for other ancillary orders.
Right to Privacy, has been recognized as a Fundamental Right in Justice K. S. Puttaswamy case by the Supreme Court. A woman’s supreme authority over her genitalia is central to her identity, dignity and autonomy and hence it is her right to privacy.
Though Article 25 permits all citizens to profess and propagate their religion yet the said freedom is restricted with a responsibility to ensure that public order, morality and health should not be compromised in the process. The community may claim that it is part of their public morality but the Constitutional morality to restrain this practice will prevail over the public morality and it is the duty of the state to ensure right to freedom from inhuman and degrading treatment as part of ‘life and personal liberty’ enshrined in Article 21 of the Constitution. A community or ritualistic practice to be claimed as essential part of the religion must satisfy the Constitutional Morality enshrined in Article 25 of the Constitution.
Along with this Constitutional mandate India has obligations under International Law not to permit practices such as FGM. India is a signatory to the United Nations Convention on the Rights of the Child 1989 which inter alia recognizes the “right of the child to the enjoyment of the highest attainable standard of health” (Article 24) and also that states parties must ensure that, “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment” (Article 46). FGM has been recognized by UN agencies as constituting, “torture and cruel, inhuman or degrading treatment as affirmed by international jurisprudence and legal doctrine”[5]. UNICEF also decries all forms of this practice[6]. Many of the UN treaty monitoring bodies, the Special Procedures of the Human Rights Council and the European Court of Human Rights condemn the practice of FGM.
When the matter was listed on 25.09.2018 before the Supreme Court there was a discussion of referring it to a larger bench for detailed discussion. The matter is pending for decision.  The Hon’ble Supreme Court may consider the Constitutional rights of the citizen and take a positive step to declare the barbaric act of FGM as illegal and recommend the legislature to make appropriate laws to curb the menace of FGM. Till the time the specific law is implemented the general law in IPC can be used against the offenders. Moreover the implementation of the resolution on the elimination of FGM, passed by the UN General Assembly, 2012 is essential for India to comply its international obligations. The Central government should initiate the process immediately to pass appropriate law to protect the victims of FGM.


[1]. Available at http://apps.who.int/iris/bitstream/handle/10665/206437/9789241549646_eng.pdf;jsessionid=869EB87BEA9082ECE4B26D86E4F60C06?sequence=  Visited on 1.19.2018.

[2]. https://www.law.cornell.edu/uscode/text/18/116.
[3]https://www.legislation.gov.uk/asp/2005/8/section/1.
[4]https://www.legislation.gov.uk/ukpga/2003/31/section/1.
[5]  Guidance Note on Refugee Claims Relating to Female Genital Mutilation drafted by the United Nations High Commissioner for Refugees (UNHCR) Protection Policy and Legal Advice Section Division of International Protection Services Geneva in May 2009, Para III sub para 8. This document is at http://www.refworld.org/docid/4a0c28492.html.
 [6]   https://data.unicef.org/topic/child-protection/female-genital-mutilation/.

Dr.K.K.Geetha
Dean & Professor
Law Department 

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