A Dawoodi Bohra Muslim woman on Thursday challenged the denominational practice of female genital mutilation (FGM), asserting that the ritual causes bodily harm and irreversible physical and psychological trauma to minor girls. She argued that it violates their health and dignity and constitutes an offense under the Protection of Children from Sexual Offences (Pocso) Act.
Arguments Presented in Court
Senior advocate Sidharth Luthra, representing Masooma Ranalvi, told a nine-judge bench led by Chief Justice Surya Kant that FGM is performed on seven-year-old girls. Therefore, the act cannot be consensual. He further stated that parents cannot protest due to fear of ex-communication by the religious head, which could lead to social boycott and severance of economic and social ties within the community.
Court's Observations
The bench, comprising Chief Justice Kant and Justices B V Nagarathna, M M Sundresh, A Amanullah, Aravind Kumar, A G Masih, P B Varale, R Mahadevan, and J Bagchi, noted that individual ex-communication cases can be challenged in civil courts. However, they questioned whether ex-communication used to maintain religious unity could be legally challenged. Justice Bagchi expressed surprise that FGM, which harms young girls, has not been banned by legislation, despite the government's constitutional mandate to promote social and religious reforms.
Legal and Constitutional Scrutiny
Luthra emphasized, "Where a child is subjected to physical pain, bodily alteration, coercive participation, or mental suffering in the name of religious observance, the matter ceases to remain one of protected religious autonomy and enters the domain of constitutional and criminal scrutiny." He added, "No denomination can claim constitutional protection for a practice that causes harm to minors, whose parents may be perpetrators or complicit in the harm. Judicial intervention in such cases is not interference with religion but enforcement of the constitutional duty to protect the dignity, bodily integrity, and future of every child."
This case highlights the conflict between religious customs and constitutional rights, particularly the protection of children from harmful practices. The Supreme Court's decision could have far-reaching implications for religious practices across India.
