FGM inflicts injury, is an offence under Pocso: Bohra woman in SC

NEW DELHI: A Dawoodi Bohra Muslim woman on Thursday questioned the denominational custom of female genital mutilation (FGM) and said the ritual inflicts bodily injury and irreversible physical and mental trauma on minor girls, which is aviolation of her health and dignity and an offence under the Protection of Children from Sexual Offences (Pocso) Act.

Appearing for Masooma Ranalvi, senior advocate Sidharth Luthra told a nine-judge bench led by CJI Surya Kant the FGM ritual is performed on seven-year-old girls, hence, there is no question of the act being consensual, and her parents cannot protest as it could invite the wrath of the religious head of the community, who could ex-communicate them.

The fear of ex-communication, which ranges from social boycott to severance of all economic and social ties with other members of the community, forcibly silences protest against the ritual, Luthra said. The bench comprising CJI Kant, Justices B V Nagarathna, M M Sundresh, A Amanullah, Aravind Kumar, A G Masih, P B Varale, R Mahadevan and J Bagchi said individual cases of excommunication can be challenged in civil courts but doubted whether the ex-communication used to keep the denomination intact on religious grounds could be questioned in a court of law.

Justice Bagchi expressed surprise that FGM, which causes injuries to vital parts of young girls, has not yet been banned by enacting a law by govt, which has a constitutional mandate to usher in social and religious reforms through legislation. Luthra said, “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.”

“No denomination can claim constitutional protection for a practice that causes harm to minors whose parents and whose actions follow that religious denomination and may be the 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,” Luthra said.