THE VICE OF FEMALE GENITAL MUTILATION – A LEGAL PERSPECTIVE

Updated: Aug 2




This article is authored by Nishtha Kheria, a 4th year law student of Amity Law School, Noida


Overview


Female genital mutilation (hereinafter ‘FGM’) refers to a process which includes the cutting or the alteration of the female genitalia and takes place on women in various developing countries or even undeveloped countries but still go unreported. There are various medical consequences associated with it such as the infections caused by virus and bacteria along with various other problems associated with mental health. In this article, I would mention its societal impact, its consequences, legal classifications, its cultural implications, and its treatments. Various conventions on the international level and the law developed in India through the interpretation of constitution by various case laws which address FGM have been discussed in the article. There are various measures taken to eliminate FGM but it contains a kind of vibrancy that continues in our society and has a huge impact on the women class. There is a need to implement various methods so that it can be eliminated from society. There is a need to have an in-depth study so that new programs can be formed for spreading alertness.


What is FGM?


Female genital mutilation is usually performed by a religious leader or any medical practitioner who has a little knowledge of medicine. It is pertinent to note that, this method is not performed for any kind of health benefits or any kind of medical purposes. This method is usually popular as a process that infringes the human rights of the women and girls. It is increasing the risks for health-related problems in women.


Kinds of FGM


FGM can be classified into for types:


I: Clitoridectomy: This procedure refers to the fractional or the complete removal of the glans of the clits which can be seen and is the outside part of the clitoris.


II: Excision: This procedure refers to when there is fractional or complete removal of the clitoris and the labia minora with or without the majora.


III: Infibulation: This procedure refers to the narrowing down of the vaginal orifice through cutting the labia minora with or without the majora.


IV: Rest all of the methods which are dangerous to the female genitalia such as the piercing, pricking, etc.


The Various Health Risks Associated with FGM


According to the WHO, there are no evident benefits associated with FGM. On the other side, the females who have suffered ithave experienced a lot of physical, emotional and sexual, trauma in their lives. This process is very upsetting, hurtful, and can cause stress. Itis often performed in unhygienic places through the people who have little knowledge of medicine. FGM causes a long-term complication which can lead to a large amount of pain or urinary tract infections (UTI), pain during menstruation, pain during urination, and a psychological concept known as post-traumatic stress disorder. FGM can cause a high risk to the health of newborn babies. The blemishing of the vulvar can cause a huge amount of pain during sexual intercourse. A decrease in the satisfaction during sexual intercourse can be another consequence due to the removal of the sexual parts.


Various International Conventions which address FGM


A Convention was introduced on the Elimination of All Forms of Discrimination Against Women (CEDAW) which was also known as the bill of the rights for women which was introduced for the discrimination and the steps to be taken for the non-discriminatory model. This convention states that if the rights of women are denied then it would be considered as a violation. Article 2 of the CEDAW Conventionstates that FGM is violence against women. In Article 4 states that the customs and traditions should not perform such heinous practices so that the violence can be reduced. Article 2 of The International Covenant on Civil and Political Rights (ICCPR) states that no discrimination should take place on the sole basis of sex. Article 7 of ICCPR refers to the protection of the physical honor of a person.


FGM in India


FGM in India is referred to as Khatna or khafd which mostly takes place in Shia Muslims. This practice is widely prevalent in the States of Maharashtra, Rajasthan, Kerala, Gujarat, and Madhya Pradesh. In the state of Kerala, this practice is known by a different name as Sunnathkalyanam which is even practiced in the Christian religion.


In the case of Shirur Mutt, it was stated that through Article 25 and 26 of the Indian Constitution the right to religion of a person can be guaranteed. When Article 21 is read with Article 51A(e) it states that it is the duty of the Indian citizens for the removal of any practices which infringe the dignity of the women. It was analyzed by the Supreme Court bench that FGM can even be considered as a crime under the POCSO which is a special act which protects the minors from sexual assaults.


The practice of FGM was challenged in the Supreme Court on the grounds that the minor girls of the Dawoodi Bohra Muslim community are being subjected to such practice and it is violating the integrity of the girl child. It was further stated that this practice was banned in USA, UK, Australia and around 27 countries of Africa. Finally, it was held that this practice is performed over the minor girls and is considered to be against the UN convention on the Rights of the Child, the Universal Declaration of Human Rights and thus illegal. This practice is causing an inequality among the two sexes and is thus also leading to discrimination against women.


In the case of Sunita Tiwari vs UOI, the practice of FGM was challenged as it was stated that this practice discriminates against the women and infringes their rights of privacy, equality, and personal liberty. This case was later merged with the case of Sabrimala temple which was then passed to the seven-judge bench for their judgment in the ratio of 3:2 where they removed the ban on the girls from entering into temples.


Sections 324 and 326 of IPC states the punishments for any kind of hurt which is caused to women and they even penalize the conducting of the FGM but these sections don’t curb the practice itself.


Societal Impacts of FGM


The societal impacts: FGM takes place in countries all around the world such as the Saharan Africa, the Middle East, and Asia. These countries have this in their religions because of which it is difficult to remove it fully. There are various local conventions associated with a society that forces the families to perform FGM on their daughters so that they can get prepared for marriage. It has been believed by the society that by performing FGM the fertility of women can be preserved and also that her hygiene will be maintained. It is also believed that it can lead to enhancing the pleasure for men. FGM is also performed so that the desires of a female are curbed and can ensure the maintenance premarital virginity.


Treatment


There is a psychological or emotional support available for such women. A method known as defibulation is also available in which the labia are again reconstructed in various hospitals throughout the world but such practices sometimes even lead to additional complications and are even of a high cost which can further lead to the financial crisis.


Eradication


The practice of FGM takes place throughout the world even though there are various laws against FGM. But there is progress in eradication of FGM in the past decade. A New Activist Movement started in Africa which is trying to understand the cultural reforms and is helping in the changes in the society. There is a need for cultural leaders so that they can highlight the harms arising out of FGM and help in curbing the practice in their respective cultures. The communities can in turn develop and introduce some new actions which will help in ending the FGM.


Conclusion


The UN General Assembly has strengthened the efforts for the abolishing of the FGM and to remove such practices that are causing physical and physiological ramifications in a human body. India should also take strict actions to curb this issue from the society. There is no specific law in India that defines or curbs this practice specifically. It is reported under acts like IPC and POCSO which highlights the requirement of a specific law. Spreading awareness in the society about the complications caused by this practice and the infringement of human rights must be provided to the citizens. The parliament must come up with a new legislation so that it can deter the people from performing it. There is also a need to introduce some harsh punishments for hospitals and medical professionals who perform FGM.

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