II NATIONAL MOOT COURT COMPETITION,2019

BEFORE THE HON’BLE SUPREME COURT OF ZINDIA

Original Writ Jurisdiction

PUBLIC INTEREST LITIGATION

W.P. (CIVIL) NO. _________ OF 2019

IN THE MATTER OF

SULEKHA TIWARI …………….………………………………..PETITIONER

Versus

UNION OF ZINDIA & ANR ………....……………………………….. RESPONDENTS

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

MEMORANDUM ON BEHALF OF THE PETITIONER

 STATEMENT OF JURISDICTION

THE PETITIONER IN THE PRESENT CASE HAS APPROACHED THE HON’BLE

SUPREME COURT OF INDIA TO INITIATE THE PIL UNDER ARTICLE 32 OF THE
CONSTITUTION OF ZINDIA. THE PETITIONER MAINTAINS THAT THE
JURISDICTION OF ART 32 OF THE CONSTITUTION, WHICH PROTECTS THE
CITIZENS OF INDIA FROM ANY VIOLATION OF THEIR FUNDAMENTAL RIGHTS, IS
APPLICABLE IN THE PRESENT CASE.THE PETITIONER MOST HUMBLY AND
RESPECTFULLY SUBMITS TO THE JURISDICTION OF THE HON’BLE SUPREME
COURT IN THE PRESENT MATTER.
 STATEMENT OF FACTS

1. Ruhani Naaz, 7 years old, lives in Mendi Bazaar in Numbai city of Zindia. She belongs to
Dohra community,a subsect of Islam. One morning, while Ruhani was on her way to school,
her grandmother lured to treat her with chocolates and took her to a small dimly lit room at
the back of a decrepit building near Mendi Bazaar.

2. On reaching there, Ruhani was asked to lie down, her hands and legs were held by her
grandmother. Awoman who was present in the room pulled her pants down and with a blade
cut off her clitoris. Ruhani experienced excessive bleeding and excruciating pain between her
legs. She did not know what had happened with her and why she had to experience such an
inhuman treatment. Her grandmother had told her this was a tradition which every girl had to
follow. After some days, Ruhani developed an infection into her vagina, had genital sores and
also experienced post traumatic stress disorder. She kept sick for a long time.

WRIT PETITION BY SULEKHA TO CRIMINALIZE FEMALE GENITAL MUTILATION

3. After a month, Sulekha, a renowned advocate and child rights activist was invited as a chief
guest at Ruhani’s school function where she got to interact with Ruhani. Ruhani saw a friend
in her and shared what she had been going through and how its repercussions have been
haunting her day and night.

4. After hearing the incident, Sulekha researched and read articles on the internet where she got
to know that this practice of female genital mutilation was prevalent amongst the Dohra
community. She decided to stand up for the women who experienced such cruel, inhuman and
degrading treatment and filed a PIL in the Supreme Court of Zindia. The matter is pending
before the Hon’ble Supreme Court of Zindia.

5. Female genital mutilation (henceforth referred to as FGM) also called “khatna” or “khafz”
involves the removing of all or a part of female genitalia without any medical reason.It does
not have any mention in Quran. The practice is prevalent amongst the Dawoodi Bohra
community, a subsect of Islam.
6. The practice of FGM originated in the African countries. Many countries like Australia, USA,
UK and parts of Africa have banned the practice of FGM, but there is no law in India banning
FGM or Khatna to declare it illegal.
 ISSUES FOR CONSIDERATION

THE APPELLANTS RESPECTFULLY ASKS THE HON’BLE SUPREME COURT OF INDIA, THE

FOLLOWING QUESTIONS:

ISSUE – I

WHETHER THE PRACTICE OF FGM IS IN VIOLATION OF THE PRINCIPLES OF

UDHR, CONVENTION ON RIGHTS OF CHILD AND THE U.N GENERAL
ASSEMBLY RESOLUTION PASSED IN DECEMBER 2012 REGARDING BANNING
OF FGM?

ISSUE – 2

WHETHER THE PRACTICE OF FGM IS IN VIOLATION OF ARTICLE 14,21 AND 39

OF THE ZINDIAN CONSTITUTION

ISSUE – 3

WHETHER THE PRACTICE OF FGM CAN BE CONSTRUED AS A CRIMINAL

OFFENCE

ISSUE – 4

WHETHER THE PRACTICE SHOULD BE DECLARED AS ILLEGAL AND BE MADE

A PUNISHABLE OFFENCE IN ZINDIA
 SUMMARY OF ARGUMENTS

ISSUE 1:

WHETHER THE PRACTICE OF FGM IS IN VIOLATION OF THE PRINCIPLES OF

UDHR, CONVENTION ON RIGHTS OF CHILD AND THE U.N GENERAL
ASSEMBLY RESOLUTION PASSED IN DECEMBER 2012 REGARDING BANNING
OF FGM?
It is humbly submitted before the Hon’ble Court of Zindia that the practice of fgm violates article
3,5 and 25 of UDHR that protect the right to life , dignity and health of individuals. Since fgm is
practiced on minors , it also violates article 6 of the convention on child rights and it is the duty
of the state of zindia as a signatory to enforce these articles in Zindia. Further the Zindian
constitution under article 51(c) allows for adoption of international laws into domestic sphere in
the view of promoting social welfare.

ISSUE 2

WHETHER THE PRACTICE OF FGM IS IN VIOLATION OF ARTICLE 14,21 AND 39

OF THE ZINDIAN CONSTITUTION

Firstly, the constitution of zindia provides two essential tenets i.e. Right to life and Right to live
with human dignity, both of which are violated by fgm. Secondly, FGM cannot be protected by
articles 25,26 and 29 of the zindia constitution as a religious tenant. Right to religion is not
absolute and must give way in favor of social welfare. The practice of khafz takes away sexual
autonomy of a woman and attempts to hide the derogatory practice behind the shroud of
religion.apart from the physical trauma endured by the victims, there is severe psychological
damage that follows fgm. Moreover, the practice of fgm has no mention in the Qur’an
ISSUE 1: WHETHER THE PRACTICE OF FGM IS IN VIOLATION OF THE
PRINCIPLES OF UDHR, CONVENTION ON RIGHTS OF CHILD AND THE U.N
GENERAL ASSEMBLY RESOLUTION PASSED IN DECEMBER 2012 REGARDING
BANNING OF FGM?

It is humbly submitted before the Hon’ble Court of Zindia that, our Zindian constitution was
greatly influenced by the Universal Declaration of Human Rights, 1948.1 The applicability of the
international treaty and law are of the consideration as; customary rules of international law are
treated to be a part of domestic law in a large number of states and in case they do not conflict
with the existing municipal law2.

It is also submitted that, there is no notable distinction in the definition of female genital
mutilation (hereinafter FGM) given by WHO and the practice approved by the Dohra
community. According to the definition given by The World Health Organization (WHO) asserts
that “Female Genital Mutilation comprises of all procedures involving partial or total removal of
the external female genitalia or other injury to the female genital organs for non-medical
reason”3.Female circumcision or Khafz is a practice that focused on the cutting of the prepuce or
the clitoral hood, which strictly falls under the definition of type I FGM classified by the WHO.
It is humbly contented before the court that, this definition should be adopted in the Zindian legal
framework, in order to combat the harmful practice of FGM.4.

1.1 That Right To Life And Personal Liberty under Article 3 of The Universal Declaration
of Human Rights has been violated.
It has been humbly contended that the State as part of its duty of due diligence is duty bound to
protect every individual's right to life and personal liberty as these rights vehemently emphasises
on the fundamental rights of the citizen, the said duty extents to protecting individuals against
violence from both the state and non-state actors.Article 3 denotes the right to life, liberty and
1
Domestic Implementation of Human Rights-KaushikDhar

2
Dr. S.K.Kapoor International law and human rights (ninth edition) 118
3
https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation
4
WHO Library Cataloguing in Publication Data Female genital mutilation: an overview. 1. Circumcision, Female 2.
Public policy 3. Human rights ISBN 92 4 156191 2 (NLM Classification: WP 200)
 security of person. It is already submitted that FGM constitutes a serious bodily invasion of the
female sex leading to several long term physical and physiological implications5 and thus a
blatant violation of the righto life.

In the case of Ireland v United Kingdom6 1978 ‘ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3’It further adds that ‘…assessment of
this minimum is, in the nature of things, relative; it depends on the circumstances of the
case, such as the duration of the treatment, its physical or mental effects and, in some
cases, the sex, age and state of health of the victim, etc.’7.

Further,Article 3 imposes positive obligation upon the State to ensure that individuals have an
opportunity for better enjoyment of his life and dignity. The right to life does not mean a right to
mere survival or an animal existence but living with human “dignity”8

1.2 The Practice Of FGM Violates The Right To Health Which Is Provided In Article 25 Of
Universal Declaration Of Human Rights

Article 25 (1) that the States show “Everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control”

Clause 2 of the same article reads as, Motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock, shall enjoy the same social
protection.

5
UN general assembly on the zero tolerance of FGM publication 2012, UN Secretary-General AntónioGuterres
6
7
Advances in Psychiatric Treatment (2008), vol. 14, 389–397- Martin Curtice
8
National Legal Services Authority vs. Union of India (UOI) and Ors. (15.04.2014 - SC) : MANU/SC/0309/2014
It is humbly submitted that it was observed in the case of Amarnath Shrine, In Re. v. Union of
India &Ors9

“Article 25(2) of UDHR ensures right to standard of adequate living for health and well-
being of an individual including housing and medical care and the right to security in the
event of sickness, disability, etc. It has a much wider meaning which includes right to
livelihood, better standard of living, hygienic conditions in the workplace and leisure. The
right to life with human dignity encompasses within its fold, some of the finer facets of
human civilization which make life worth living."10

Female genital mutilation (hereinafter FGM) has no health benefits and involves removing
and/or damaging healthy and normal body tissue. The psychological trauma arising from the
procedure is more difficult to measure but it is clear that FGM can result post-traumatic stress
disorder, depression and anxiety. A major WHO studypublished in [PS2] 200611, found a
significant increase in poor obstetric outcomes, including death of the baby, for women who had
undergone FGM.

Furthermore the practice of FGM violates the Article 5 reads as,” No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment”. A state with malpractices
like inhuman treatment of women’s life and liberty in the form of FGM would fail to ensure a
meaningful life to its citizen and hence it would not have the values of equality and fairness-
based system.

1.3.ThePractice Of FGM/C/ Khatna/KhafzViolates The Principle Of UNCRC

Since FGM/Khafz is mostly practiced on girls below the age of 18 years, it is also a violation of
rights enshrined in the United Nations Convention on the Rights of the Child, 1989 (hereinafter
UNCRC) and violates the guarantee of non-discrimination

9
10
MilunSuryajani and Ors.vs. Pune Municipal Commissioner, Shivajinagar and Ors. (23.12.2015 - BOMHC) :
MANU/MH/3430/2015

11
WHO study publis69hed in [PS2] 2006 pg.13
Under Article 6 of United Nations Convention on the Rights of the Child (hereinafter
UNCRC),States Parties recognize that every child has the inherent right to life and shall ensure
to the maximum extent possible the survival and development of the child’

In the light of the article 6, the State has an obligation to protect children from any form of
discrimination and all actions concerning the child and should take full account of his or her best
interests. The child has the right to express an opinion, and to have that opinion taken into
account, in any matter or procedure affecting the child, in accordance with his or her age and
maturity. As the practice of FGM/C is subjected towards voluntary removal of the prepuce of the
clit leaving the child partially disabled, the consent of the child shall be made a subject of
interrogation for the welfare of the child.

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment has commented that: “With regard to the element of powerlessness it must be noted
that the cutting is usually carried out before a girl’s tenth birthday. In such circumstances, girls
are clearly under the complete control of their parents and communities and do not have the
possibility of resisting. On the other hand, adolescent girls and women very often agree to
undergo FGM because they fear the non-acceptance of their communities, families and peers” 12

1.4 That The International Convention And Treaty Bind On Zindia

The State as pointed out by the Supreme Court in Vishaka v. State of Rajasthan13 has reiterated
that, any international convention not inconsistent with the functioning of the fundamental rights
and in harmony with its spirit must be read into these provisions of international treaties to
enlarge the meaning and content thereof, to promote the object of constitutional guarantee.
Therefore, the state has to uphold the “innovative judicial law-making process”.14

12
UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment,2012
13
AIR 1977 SC 3011
14
Dr. S.K.Kapoor International law and human rights (ninth edition)116
It is submitted that the international convents and declarations as adopted by the United Nations
have to be respected by all signatory states and the meaning given to the words in such
declarations and covenants such as would help in effective implementation of those rights.
Theapplicability of the Universal Declarations Of Human Rights and the principles thereof may
15
have to be read, if need be, into the domestic jurisprudence.

It is humbly submitted that the article 51 (c) of the Zindian Constitution; that is, the State shall
endeavor to foster respect for international law and treaty obligations in the dealings of organized
people with one another;

The state has relied upon this article to introduce and implement various international
instruments, particularly The Declaration of Human Rightsand the two covenants 16on the
political and civil rights and the economic, social and cultural rights in the interpretation of the
fundamental rights.

It is submitted that, with the virtue of the article 51 (c) the courts have held that the international
instruments, particularly those which Zindia is a party, become of Indian law so long as they are
not inconsistent with it. Therefore, they can be very well relied upon and enforced. 17In the case
of JeejaGhosh V. Union of India18, the court has not only apprehended the international law
treaties and conventions which it has been a part of but also has showed light in the non-
signatory treaty like the Vienna Convention, which reads as “The Vienna Convention on the Law
of Treaties, 1963 requires India's internal legislation to comply with international commitments.”
Article 27 states that a "State party... may not invoke the provisions of its internal law as
justification for its failure to perform a treaty." 19

15
Chairman, Railway board & others v. Mrs. Chandriman Das and others, AIR 2000 SC 988
16
International Covenant on Civil and Political Rights, resolution 2200A
(XXI) of 16 December 1966 and International Covenant on Economic, Social and Cultural Rights
Assembly resolution 2200A (XXI) of 16 December 1966

17
Prem Shankar Shukla v. Delhi adm, (1980) 3 SCC 526 , AIR 1980 SC 1535 and Apparel Export Promotion
Council V. A.K Chopra (1999) 1 SCC 759
18

19
JeejaGhosh and Ors.vs. Union of India (UOI) and Ors. (12.05.2016 - SC) :
MANU/SC/0574/2016
It humbly submitted that, in the opinion of Dr. Ananad, C-JI observed that, “In cases involving
violation of human rights that courts must for ever remain alive to the international
instruments and conventions and apply the same to a given a case when there is no
inconsistency between international norms and the domestic law occupying the filed. In
the instant case, the higher court appears to have totally ignored the intent and content
of the international conventions and norms while dealing with the case. “ 20

Thus, as reaffirmed in the Resolution adopted, all States should take all necessary measures,
including enacting and enforcing legislation, to prohibit female genital mutilations and to protect
women and girls from this form of violence, and to hold perpetrators to account. This is also an
explicit and strong signal of support to all activists working from the grass-roots to the policy
level and advocating for clear and effective national legislation to unequivocally ban FGM in
their respective countries. Enacting and enforcing such legislation is critical to legitimize their
local advocacy and educational efforts, to strengthen those who seek to defy the social pressures
of tradition and reject FGM, to protect its victims and to end impunity.21

ISSUE 2: WHETHER THE PRACTICE OF FGM IS IN VIOLATIONOF ARTICLE 14,21

AND 39 OF THE ZINDIAN CONSTITUTION

2.1 That FGM Violates The Concept Of Dignity under article 21 of The Constitution Of
Zindia

it is submitted that the essence of life lies not within the engendered notions of purity but is
rather in the acknowledgement of the dignity of the individual which has now been an
indispensable part of Art.21 by virtue of the judgment of the Hon’ble Supreme Court Of India in
Justice (Retd.) Puttaswamy v Union Of India22.The phrase “dignity” appears in the Constitution
at three places, firstly in the Preamble, secondly in Art 39(f) and thirdly in art. 51 A(e) while
enlisting the duty to denounce practices derogatory to the dignity of women.
20
AIR 1999 SC 625 at p.634.
21
Statement by AlvildaJablonko, FGM Program Coordinator of No Peace Without Justice

22
INSERT CIT
In State of Madhya Pradesh v. Madanlal,23 the Court held: “Dignity of a woman is a part of her
nonperishable and immortal self and no one should ever think of painting it in clay.
There cannot be a compromise or settlement as it would be against her honor which
matters the most. It is sacrosanct”.

In Vishaka v. State of Rajasthan24, the Hon’ble Court underlined the right of women to dignity as
a universally recognized as a basic human right. Mutilating a part of a woman’s body is
effectively declaring that a woman’s body is less than human unless it is forced to conform to
unreasonable standards. It was in Kharak Singh v. State of Uttar Pradesh25 the Supreme Court
held that:

“By the term “life” as here used something more is meant than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which
life is enjoyed. The provision equally prohibits the mutilation of the body by amputation
of an arm or leg or the pulling out of an eye, or the destruction of any other organ of the
body through which the soul communicates with the outer world.”

The Supreme Court reiterated with the approval the above observations and held that the “right
to life” included the right to lead a healthy life so as to enjoy all faculties of the human body in
their prime conditions.26In MasilamaniMudaliar v. Idol of Sri SwaminathaswamiThirukoil,27 a
three-judge bench of the Hon’ble Court observed that the pre-existing impediments that stood in
the way of the female segment of society was intended to be removed by virtue of the right to
equality and dignity.

In State of Punjab v. M.S. Chawla28, it has been held that the right to life guaranteed under
Article 21 includes within its ambit the right to health and medical care. The petitioner submits
that FGM has several short term and long term ill effects on the victims. Since anesthesia is
rarely used on the victim during the procedure, there is extreme pain. The victim is subjected to
excessive bleeding, swelling, infection, and urinary problems .The long term consequences
23
State of Madhya Pradesh v. Madanlal, (2015) 7 SCC 681; Charu Khurana and others v. Union of India and others,
(2015) 1 SCC 192; National Legal Services Authority v. Union of India and others, (2014) 5 SCC 438.
24
(1997) 6 SCC 241
25
AIR 1963 SC 1295
26
Sunil Batra v. Delhi Administration AIR 1978 SC 1675
27
(1996) 8 SCC 525
28
 M.P. Jain, Indian Constitutional Law, Ed. 6th (2010), p. 1616
 include chronic urinary tract infections, painful sexual intercourse, and complications during
pregnancy.29

The Supreme Court in Vincent v Union of India30, emphasized that a healthy body is the very
foundation of all human activities.Art.47, a Directive Principle of State Policy in this regard
lays stress note on improvement of public health as one of primary duties of the state

Moreover, the act of male circumcision is in no way comparable with that of FGM. Male
circumcision is known to reduce the risk of HIV as per studies conducted in Africa and Sub-
Saharan countries31.The procedure itself is far more complex and dangerous in women. The
belief that the procedure produces protective factors against sexually transmitted infections
(STIs), much like male circumcision, was disproved in a case-control study conducted in
Sudan32 In a study carried out by the Netherlands Institute of Human Rights (SIM)33, it was
stated that genital mutilation of girls frequently goes further than mere circumcision. The only
form of female genital mutilation which is anatomically comparable with the circumcision of
boys is that form of circumcision in which the clitoral prepuce is cut away. This form, however,
occurs very rarely.34.Furthermore the primary customary and religious reason for FGM is to
take away sexual sensation of a woman and thereby extend a level of bodily control over her.
There is no such connotation in the case of male circumcision

29
“THE CLITORAL HOOD A CONTESTED SITE”, COMMISSIONED BY WESPEAKOUT AND
NariSamitaManch, in 2018
30
1996 SCC (4) 37, JT 1996 (6) 43
31
Male circumcision and risk of HIV infection in sub-Saharan Africa: a systematic review and meta-analysis
Weiss, Helen A.; Quigley, Maria A.; Hayes, Richard J.
AIDS: October 20th, 2000 - Volume 14 - Issue 15 - p 2361-2370
32
Ivazzo C., Sardi T. A., Gkegkes I. D. Female genital mutilation and infections: a systematic review of the clinical
evidence. Archives of Gynecology and Obstetrics. 2013;287(6):1137–1149. doi: 10.1007/s00404-012-2708-
5. [PubMed] [CrossRef]
33
 Jacqueline Smith, Visions and Discussions on Genital Mutilation of Girls: An International Survey, Defence for
Children International, Section The Netherlands, Amsterdam, 1995. This study was carried out on behalf of Defence
for Children International, Section The Netherlands, at the request of the Netherlands Ministry of Foreign Affairs,
Directorate General for International Cooperation.
34
 Ibidem, p. 2 and p. 10. See also the Inter-African Committee on Traditional Practises Affecting the Health of
Women and Children, Report on the Regional Conference on Traditional Practises Affecting the Health of Women
and Children, 19-24 November 1990, Addis Ababa, Ethiopia; Berhane Ras-Work, Activities Concerning
Traditional Practises Affecting the Health of Women and Children and Profile of Non-Governmental Organisations
Involved in this Issue, WHO, Geneva, 1989.
That fgm violates equality as envisaged under art 14

It is most humbly submitted that the underlying object of article 14 is to secure to all persons,
citizens, or non-citizens, the equality of status and opportunity referred to in the preamble to our
constitution.35 The horizons of equality as embodied in art. 14 have been expanding as a result of
the judicial pronouncements and art 14 has now come to have a “highly activist magnitude”.36 In
Indira Sawhney’s37 case, Sawant, J concurring with the majority observed that to bring about
equality between the unequals, it was necessary to adopt positive measures to abolish inequality.

It is submitted FGM also known as Khatna/Khafz, comprises all procedures involving partial or
total removal of the external female genitalia or other injury to the female genital organs for non-
medical reasons. The practice is aimed at a particular class based on the engendered notions of
purity and the conservative ideologies of female sexuality. The Supreme Court adopted the
positivistic or activist stance in E.P. Royappa v. State of Tamil Nadu38 Bhagwati, J. stated :
"Equality is a dynamic concept with many aspects and it cannot be 'cribbed, cabined and
confined' within the traditional and doctrinaire limits. From the positivistic point of view equality
is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies.... Where an act
is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional
law and is therefore violative of Article 14...."

It was unanimously approved by the Supreme Court in Ajai Hasia v. Khalid Mujib.15 After
reiterating that equality is a dynamic concept with many aspects which could not be confined to
traditional and doctrinaire limits, Bhagwati, J. had in Maneka Gandhi proceeded to examine the
'content and reach' of the 'great equalising principle' enshrined in Article 14.

Gender justice is a constitutional goal of overwhelming importance and magnitude without

accomplishing which, half of the country’s citizenry will not be able to enjoy to the fullest the
rights, the status and opportunities available under the Constitution to every citizen of India. The
conferment of a social status based on patriarchal values or one that is at the mercy of men-folk
is incompatible with the letter and spirit of Articles 14 and 15(3) of the Constitution.

35
Natural Resources Allocations,In Re Special Reference No.1 of 2012,(2012) 10 SCC 1 (77) :2012
36
M.P JAIN,INDIAN CONSTITUTIONAL LAW 878 (7th ed. 2016)
37
INSERT CIT
38
 1.2Religious Freedom Is Not An Absolute Right

It is humbly submitted that freedom of religion is subject to fundamental rights. The words of
Article 25(1) of the Constitution which confer the right to practice, preach and propagate religion
are “subject to the provisions of this Part”, which means that it is subject to Articles 14 and 15
which guarantee equality and nondiscrimination. In Sri VenkataramanaDevaru v. State of
Mysore39, the Court considered the meaning of the phrase “subject to the provisions of this Part”
in Article 25 (1) to state that the other provisions of the Part would “prevail over” it, or would
“control the right conferred” by Article 25 (1).

The freedom of religion under Article 25 is subject to public order, morality and health. Even
assuming, purely for the purposes of argument, that such practices are an integral or essential
part of religion, it is submitted that the fundamental right guaranteed under Article 25 is
qualified, inter alia, on grounds of “morality”. Morality in the present context would denote
contemporary constitutional morality which endeavors to strive for gender equality and dignity
of women and the abandonment of practices which may be considered patriarchal, anachronistic
or retrograde.

It is necessary to draw a line between religion per se and religious practices. The latter are not
protected under Article 25.In State of Bombay v. NarasuAppa Mali 40

“sharp distinction must be drawn between religious faith and belief and religious
practices. What the State protects is religious faith and belief. If religious practices run
counter to public order, morality or health or a policy of social welfare upon which the
State has embarked, then the religious practices must give way before the good of the
people of the State as a whole.”

Freedom of religion would not allow a man to commit human sacrifice41even though it is
sanctioned by some religious creed; or to commit an act which is a crime under the law.

1.3.FGM Is Not An Essential Religious Practice

39
1958 SCR 895 :AIR 1958SC 255 (paragraph 26),
40
Insert cit
41
Saifuddin v state of Bombay AIR 1962 SC 853 :1962 (Supp-1) SCR 496 :1962 (2) SCR Supp 496 (863)
It is humbly submitted that there is no evidence to sustain the fact that FGM is an essential
religious practice that can be protected within the ambit of Art.25. There is no mandate at all for
female circumcision, however, neither in the Qur'an, the traditional reports, nor medical theory.
The hadiths(teachings of the Prophet) that support circumcising a female are considered “weak,”
which means they cannot be used to create an Islamic ruling based on the fact that it is not
known if they came from the Prophet or not.it is also to be noted that the Muslim Council of
Britain has , condemned the practice of female genital mutilation as "un-Islamic" and told its
members that FGM risks bringing their religion into disrepute. It added that one of the "basic
principles" of Islam was that believers should not harm themselves or others.42

In the Quareshi case43 the Supreme Court further held that the religious practice under question
should not only be “enjoined or sanctioned”44 by one’s religion but it must also be “an obligatory
overt act”45 of the concerned religion to exhibit its tenet. The case dealt with the custom of cow
sacrifice, a practice that was banned in view of the religious sentiments of the Hindus. the
Supreme Court observed ,after going through the Islamic custom of animal sacrifice on Bakr-Id
day , that cow sacrifice was sanctioned by Islam but it was not an obligatory overt act to express
Islamic faith and, therefore, it would not be protected under practice of religion as given in
clause (1) of article 25.

It was held by the Hon’ble Supreme Court that “What constitutes the essential part of a religion
is primarily to be ascertained with reference to the doctrines of that religion itself.”46There are in
principle three hadiths that are normally used to argue for female circumcision as a religious act.

 Hadith One:Circumcision is a Sunnah (obligation) for men, honour for women.

This hadith is not reported in the more reliable books of hadith of Bukhari and is not even
included in the Mu’atta of Imam Malik. It is narrated in less reliable books like Musnad of

42
https://forwarduk.org.uk/wp-content/uploads/2014/12/FGM-Islam-Leaflet.pdf
43
Mohammad HanifQuareshi v. State of Bihar, AIR 1958 SC 731.
44
Ibid., at 739.
45
Ibid., at 740.
 Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha
46

Swamiyar of Shirur Mutt, (1954) SCR 1005.

Ahmad47, Mu’jam al-Kabir48, Sunan al-Kubra49 and MusnafOfIbnAbiShaybah50 . Also it is worth
noticing that the hadith is in fact implying opposite of what the pro female circumcision argues
for. It makes it clear that while circumcision is Sunnah for men, it is not Sunnah for women. It
should be noted that the word Sunnah in the hadith cannot refer to the same technical meaning as
in Hanafi school of thought. Therefore one cannot argue that the hadith means circumcision is
obligation for men but recommended for women. The word Sunnah, in the terminology of the
Prophet (PBUH) and the companions, simply means a prescribed religious task. Therefore the
above hadith, while not being authentic, simply implies that female circumcision is not a
prescribed religious act.The above hadith is therefore not reliable or relevant enough to be used
as evidence.

 Hadith Two:When the circumcised (part in a male) meets the circumcised (part in a
female) then Ghusl (ritual bath) will become obligatory.  51
The important point to notice however is that the hadith does not imply in any way that female
circumcision is Sunnah. It is only referring to the female private part as one of the circumcised. It
is an established fact that unless a practice is sunnah, it cannot be an essential religious practice
under Islamic law. This seems to be a case of using the method of Mujanisa in Arabic language
where two associated items are referred to by using a feature that is related to the more familiar
one or the one that is easier to refer to.
 Hadith Three:A women used to do circumcision in Medina, so the prophet told her: ‘do
not overstrain, (this way) it will be more pleasant for the woman and more liked for the
husband.’52

It is worth noticing that this hadith too, like the previous ones, in no way makes it clear that
female circumcision is Sunnah. As stated before, the practice was already existing among Arabs
of the time. Therefore even with the false assumption that the hadith is authentic, the Prophet
47
(no. 20719)
48
(no. 7112-3, 11590, 12009, 12828)
49
(17565-8)
50
no. 26468).
51
collections of hadith, including Muslim (no. 531), Mu’atta of Imam Malik (no. 71, 76, 125, 143),
Jami’ of Tirmidhi (no. 109), Sunan of ibn Majah (no. 600, 603), Sahih of ibn Haban (no. 1205),
Musnad of Ahmad (no. 24206), Musnaf of Abd al-Razzagh (no. 936, 955) and Sunan al-Kubra (no.
779).
52
Sunan of Abi Dawud (no. 4589), Sunan al-Kubra (no. 16136, 16137) and Shu’ab al-Iman of Biyaghi
(no. 8125).
(PBUH) has in fact shown his concerns about this practice by advising the woman who
circumcises to not do this in a severe way. There are no signs in the hadith that the prophet
considered this as a religions act.

It is further submitted that when the practice of Triple Talak was challenged, the Court examined
whether it was an essential practice to the Hanafi school of Muslims53and observed that a
practice does not acquire the sanction of religion simply because it is permitted and merely
because a practice has continued for long; that by itself cannot make it valid.it was held by
J.Chandrchud that the morality conceptualised under Articles 25 and 26 of the Constitution
cannot have the effect of eroding the fundamental rights guaranteed under these Articles.54Thus
the practice of fgm cannot be protected under art.25 and is in clear violation of the principles of
equality.

1.4 That The Concept Of Public Purpose Precedes Religious Principles

in the case regarding State of Bihar v. Sir KameshwarSingh,which appeared before the Supreme
Court of India55, the Court had the occasion to give judicial definition to the term “public
purposes” as used in the Constitution. The Court held in its interpretation that whatever furthers
the general interests of the community as opposed to the particular interests of the individual
must be regarded as a public purpose.56

Similarly, in the case of Somavanti v. State of Punjab57 the court reiterated the same definition of
“public purpose”.When article 25 is read with article 23, the intent of the Constitution is that the
State stands to provide its citizens security of life and property and to promote human welfare
with the object in view for the development of people’s life befitting to a life of dignity for all.
This cannot be disturbed by religious belief. Hence, the types of religious practices or beliefs or
even ideologies protected under article 25 are the ones, which support some of these fundamental
humanistic objectives of the Constitution.

ISSUE 3.WHETHER THE PRACTICE OF FGM CONSTITUTES A CRIMINAL

OFFENCE?

53
Shayara Banu vs Union of India, (2017) 9 SCC 1.
54
Indian Young Lawyers’ Association v. State of Kerala
55
AIR 1952 SC 252
56
V. D. Mahajan, op.cit, p. 231
57
AIR 1963 SC 151.
It is humbly submitted that the provisions of the Indian penal code can be extended to include
female genital mutilation.
2.1 That Fgm Falls Within The Definitions Of Hurt And Grievous Hurt.

It is submitted that fgm falls within the definition of hurt under s319. The section defines the
same as “whoever causes bodily pain,disease or infirmity to any person is said to cause hurt”. All
that the section contemplates is the causing of bodily pain58,the degree or severity of the pain is
not a material factor and hence the argument that circumcision was intended to only be a nick of
the clitoris is invalid.

It is further submitted that the term “infirmity” mentioned in section 319 has been interpreted by
the courts to mean the inability of an organ to perform its normal function59.the normal function
of a clitoris is both protection from injury during intercourse, as well as pleasure.60It is to be
noted that in most cases however, the cutting occur of not just the clitoris but also of the labia
majora and minora. In Anis Beg v Emperor61 it was held that the inability may be permanent or
temporary. As explained by experts,62 any alteration of the natural anatomy of the vulva, such as
removal of the protective labia minora, can lead to structural and physiological changes,
including trauma to the urethra, adjacent tissues and nerves at the time of the procedure as well
as formation of scars and flaps of skin during the healing process. Infirmity also means
temporary mental impairment, hysteria or terror.63Most victims of the practice undergo shock
and display characteristics of PTSD.

Severe bodily pain falls within the definition of hurt no matter whatever be the duration of the
pain.64In R v Miller65, it was held that the term ‘actual bodily harm’ includes any hurt or injury
calculated to interfere with the health or comfort of the prosecutor; it need not be of a permanent
nature, nor amount to grievous hurt.It is a known fact that fgm causes immediate pain due to the

58
Ranganayakamma v state of andrapradesh AIR 1967 AP 208 (1967)Cr LJ 849
59
Psapillai CRIMINAL LAW 13thed
60

61
AIR 1924 All 215, (1926) Cr LJ 413 All
62
. Almroth L, Bedri H, El Musharaf S, et al. Urogenital complications among girls with genital mutilation: a
hospital based study in Khartoum. Afr J Reprod Health 2005;9:118–24.
63
Kdgaur,INDIAN PENAL CODE pg 620
64
Ranthanlal and dhirajlal, THE LAW OF CRIMES Pg 846 22nded
65
R v Miller, (1954) 2 QB 282
lack of medical attention while undergoing the procedure and the victims also suffer from lasting
pain during urination, walking, intercourse, as well as pain emanating from genital infections.

Lynsky.J observed
“There was a time when shock was not regarded as bodily hurt, but the day has gone by
when that could be said. It seems to me now that, if a person is caused hurt or injury
resulting, not in any physical injury but in an injury to her state of mind for the time
being, that is within the definition of “actual bodily harm”66 

The World Health Organization67 reported that immediate psychological trauma may stem from
the pain, shock and the use of physical force by those performing FGM. A study in practising
African communities found that women who have undergone FGM have the same levels of Post
Traumatic Stress Disorder (PTSD) as adults who have been subjected to early childhood abuse,
and that the majority of the women (80 per cent) suffer from affective (mood) or anxiety
disorders68

It is also submitted that with reference to the severity of the complications, fgm falls within the
ambit of grievous hurt. The effects of fgm must be distinguished from a simple wound or a
scratch. In its definition of grievous hurt, “privation of any member or joint“ and “destruction or
permanent impairing of the powers of any member or joint“ clearly encompass the impairment
and destruction of the clitoris and vaginal structure.

‘Member’ as defined by the Merriam Webster Dictionary69 refers to “a body part or organ” The
term ‘privation’ refers to the loss or absence of a quality or attribute that is normally present.The
clitoris and the labial structures being such distinct parts of the female anatomy loses its
functionality and undergoes such permanent impairment through fgm. its most severe form (type
III) also known as infibulation, consists of narrowing the vaginal orifice with creation of a
covering seal by cutting and appositioning the labia minora and/or labia majora, with or without
removal of the clitoris.70

66
R v Miller, (1954) 2 All ER 529
67
(2008, Annex 5)
68
(Keel, 2014, p.6).
69
70
The petitioners further points out that grievous hurt also includes “any hurt which endangers life
or which causes the sufferer to be during the space of twenty days in severe bodily pain, or
unable to follow his ordinary pursuits.” representative studies of moderate and high
methodological quality have indicated that the most common immediate issues were: excessive
bleeding, urine retention, genital tissue swelling, problems with wound healing and pain all of
which take atleast 3 weeks to heal .71

it is admitted that the mere fact that a man was in the hospital for twenty days is not sufficient;it
must be proved that during that time he was unable to follow his ordinary pursuits.72 It is humbly
argued that a girl can in no way continue her daily activities while undergoing severe pain
associated with fgm.When infibulation takes place, thorns or stitches may be used to hold the
two sides of the labia majora together and the legs may be bound together for up to forty days.73
Furthermore, the access to proper hospitals or other actual medical care is a mere dream for its
victims.

Fgm is often conducted with the intention and knowledge of the hurt it will cause as the cutting
is normally done by the women in the community who have also undergone the same
procedure.section 321 and 322 deals with voluntary causing hurt and grievous hurt.there are two
essentials required under the aforementioned sections. Firstly that the act caused bodily pain,
disease or infirmity to the complainant and secondly that the act was done intentionally or with
the knowledge that it would cause hurt. Knowledge can be inferred from the part of the body
chosen for inflicting violence and the severity of that violence as shown by the injuries on the
body of the victim.74 It is submitted that the clitoris is an extremely sensitive part with over 8000
nerve endings and provides a vital protection to the clitoris. Severing the entire clitoris or any
other vaginal structure is clear proof of knowledge.

71
El Dareer A. Complications of female circumcision in the Sudan. Trop Doct 1983;13:131–3.
72
Mithu Singh v State Of Punjab, 1980 Punj LR 639
73
Population Reference Bureau, Women and Girls at Risk of Female Genital Mutilation/Cutting in the United States,
2013, http://www.prb.org/Publications/Articles/2015/us-fgmc.aspx.
74
Joseph cheriyan, [1953] Cr LJ 706
Furthermore, where the injury is caused with a cutting weapon, section 324 and 326 applies75 as
is the case in fgm. In most cases the tools used include knives, clippers, scissors, or hot objects76
in natrajagoundan77 it was held that to attract section 326, the weapons used must be deadly and
the hurt intended or likely to be caused grievous.

2.2 That Modesty Of A Woman Is Outraged Through Fgm

It is contended that modesty of a woman is also an essential factor while discussing fgm. The
offence punishable under Section 354 is an assault on or use of criminal force to a woman with
the intention of outraging her modesty or with the knowledge of the likelihood of doing so.
Khatna essentially occurs when a girl is 6-7 years old prior to her attainment of puberty.
Bachawat, J. using Section 10 of the Indian Penal Code explains that "woman" denotes a female
human being of any age. The expression "woman" is used in Section 354 in conformity with this
explanation,as per section 7.78 In pandurang mahale v state of Maharashtra79 the Supreme Court
held that the essence of a woman’s modesty is her sex.thus, a girl child undergoing this practice
falls within the purview of this section

It was also held that in order to constitute an offence under section 354, mere knowledge that
modesty of a woman is likely to be outraged is sufficient without any deliberate intention of
having such outrage alone for its object.80since the multilation occurs in the genital region of the
girls, it is evident that there is a violation of modesty. No adult can claim that they were unaware
of the fact that touching genitals of girls while performing the khatna amounts to an immoral act.

furthermore, the defense that a woman is often performing the act is irrelevant. It was held in
GirdharGopal vs. State81 For, a woman can assault or use criminal force to any other woman as
equally and effectively as any man; and the intention or knowledge that the modesty of the
woman assaulted or against whom criminal force has been used will be outraged, is not of a
kind which a woman on account of inherent differences from man is incapable of having. The

75
Fatteh khan (1930) 32 Cr. LJ 342, (1930) AIR (L) 950
76
N. Nour, “Female genital cutting: impact on women’s health,” Seminars in Reproductive Medicine, vol. 33, no. 1,
pp. 41–46, 2015.
77
Natrajagoundan (in re:) AIR 1939 Mad 507
78
[State of Punjab vs. Major Singh (28.04.1966 - SC) : MANU/SC/0295/]
79
AIR 2004 SC 1677
80
S. n misra, INDIAN PENAL CODE,1860 pg 732
81
[GirdharGopal vs. State (18.12.1952 - MPHC) : MANU/MP/0022/1952]
pronoun "he" used in the expression "that he will thereby outrage her modesty" must therefore
be taken under Section 8, Penal Code as importing a male or a female.

2.3 That Fgm Is Does Not Fall Within The Defence Of Good Faith Under Section 89

it is humbly submitted that section 89 protects acts done in good faith for the benefit of the child
from constituting an offence, subject to four exceptions.the fourth exception states “this
exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause
grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of
any grievous disease or infirmity”

it has already been submitted that the act of fgm does not provide any health benefits. Rather, the
myriad of risks associated with it were raised. There is no doubt that the injury caused by the
practice amounts to grievous hurt. The acts of the guardians are on misplaced sense of religion
rooted in orthodox and outdated customs.

The aim behind section 89 was to allow guardians to do what is best for the minor and for the
state to step in when the actions are a danger to the well being of the child.Thus, fgm falls within
the purview of the indian penal code.

2.4 Fgm is an offence under the pocso

Section 3 of the Protection of Children from Sexual Offences Act, 2012(POCSO Act) that
addresses penetrative sexual assault by any person on any child, inter alia defines it as insertion
of any object into the vagina of the girl

Section 3(b) of POCSO: “Penetrative sexual assault.- A person is said to commit "penetrative
sexual assault" if-
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of the child or
makes the child to do so with him or any other person”
FGM/C, which requires insertion of a sharp object into the vagina of a child, may be covered
under Section 3, POCSO Act
The Goa Children’s Act, 2003 (GC Act) under Section 2(y)(i) defines ‘Sexual assault’ as
“different types of intercourse; vaginal or oral or anal, use of objects with children”, and
“deliberately causing injury to the sexual organs of children,…” FGM/C depending on facts and
circumstances may fall to be prosecuted under any one of these provisions.

Declaring the practice to be illegal and making it a punishable offence across Zindia would act as
deterrence to the practice of Female Genital Mutilation. Activists and commentators on the law
and FGM have previously noted, however, that the use of prison sentences generally has a
greater impact on perpetrators than a monetary fine. There is a huge stigma in many communities
attached to spending time in prison; hence, the possibility of imprisonment is considered the
most effective deterrent.82 Having a law and enforcing it is important, however, as it shows
government commitment to eradicating the practice. In the long-term the prosecution and
reporting of cases should become a deterrent.

ISSUE 4 :WHETHER THE PRACTICE SHOULD BE DECLARED AS ILLEGAL AND

BE MADE A PUNISHABLE OFFENCE IN ZINDIA

The practice of Female Genital Mutilation should be declared as illegal and be made a
punishable offence in Zindia, as the practice is violative of the fundamental rights of the female
of the Bohra community, and also violates human rights.

4.1 The Practice Is Against Human Rights And Principles Of The Constitution

The practice of fgm is against child rights and violation of their basic fundamental rights which
every citizen is entitled to enjoy, i.e. right to live with dignity and respect, which also includes
right to live a normal life without any deformity.

The practice violates Article 14 since it is a form of gender-based violence that aims to control
the sexual behavior of women and girls. Sexual desire in girls and women is viewed as

82
[Card 1973, von Hirsch 1985, Nozick 1981: 366–74]
something that needs protection and it is perceived to be a family’s duty to circumcise their
daughters to provide this protection83

The practice violates Article 21 of the Indian Constitution, which guarantees ‘Right to Life’. The
expression "life" used in that Article cannot be confined only to the taking away of life but must
be interpreted in a far more holistic manner.

In the matter of BandhuaMuktiMorcha v. Union of India84Bhagwati J. observed:

“It is the fundamental right of everyone in this country… to live with human dignity free from
exploitation. The right to dignity includes the right of the individual to develop to the full extent
of their potential and the right to autonomy over fundamental personal choices”

In the case of State of Punjab v. M.S. Chawla85it has been held that- the right to life guaranteed
under Article 21 includes within its ambit the right to health and medical care. The practice of
Female Genital Mutilation leads to various ill health effects that according to a most recent
study86

Moreover the practice of FGM is against public order, morality and health and hence cannot be
protected by the right to practice religion. In this regard attention is invited to the judgmentin
CharuKhurrana v. UOI87wherein it was held thatno state recognition can be given to any
organizationwhich discriminates against women or violated theirFundamental Rights. It is
submitted that in any event, the said invasion is a diminution of the human body and not
permitted by law

A guide to Eliminating the practice of fgm in India”,Published by lawyers collective and

83

wespeakout, in201

84
[1984 AIR 802, 1984 SCR (2) 67]
85
[55 American LR 171]
86
“THE CLITORAL HOOD A CONTESTED SITE”, COMMISSIONED BY WESPEAKOUT AND
NariSamita March 2018
87
(2015) 1 SCC 192
It is also submitted that, there is no notable distinction given by WHO, the practice approved by
the dohra community. According to the definition given by The World Health Organization
(WHO) on FGM/C asserts that “Female Genital Mutilation comprises of all procedures involving
partial or total removal of the external female genitalia or other injury to the female genital
organs for non-medical reason”88. It is already established that FGM is a religious practice where
the due course is focused on the cutting of the prepuce or the clitoral hood, which strictly falls
under the definition of FGM/C as set out by the WHO. It is humbly contented before the court
that, this definition should be adopted in the Zindian legal framework, in order to combat the
harmful practice of FGM/C carried out under different names like Khafz/khafd /khatna.89.

It is to be noted that the religious leaders of the DawoodiBohra community have advised Bohras
living in the Western countries in strictest terms to not practice khafz in various other parts of the
world’s such as Sydney, Washington, Tampa, New York along with some other states , as it falls
under the definition of FGM under the laws in these countries / states90

It is humbly submitted that the test of essential practice is that the practice should followed
throughout the world amongst the people following the same religious diasporas, however these
resolutions have excused some people of this very religious diaspora to follow this practice of
Khafd/Khafz/Khatna, which concludes that the religious leaders of the Bohra community itself
do not view this as an essential practice.
4.2 Zindia is bound by the doctrine of ParensPatriae
Black’s Law Dictionary defines ‘parenspatriae’ as “The State regarded as a sovereign in its
capacity as provider of protection to those unable to care for themselves.” It is stated
that parenspatriae is the inherent power and authority of a State to provide protection to the
person and property of persons non Sui juris, such as minor, insane, and incompetent
persons. In Heller vs. DOE91, Justice Kennedy observed:“The State has a legitimate interest
under its  parenspatriae powers in providing care to its citizens who are unable to care for

88
https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation
89
WHO Library Cataloguing in Publication Data Female genital mutilation: an overview. 1. Circumcision, Female 2.
Public policy 3. Human rights ISBN 92 4 156191 2 (NLM Classification: WP 200)
90
the Declaration of the Anjuman-e-Burhani Sydney

91
(509) US 312.
themselves.”Every minor who is subjected to the practice of fgm must be protected by the State.
The actions of their guardians cannot be construed as “acting in good faith”. Further the phrase
must also include adult women who were forced to undergo mutilation to be considered a part of
the Dohra community.

Also, in the case of State of Kerala v. N.M. Thomas92, it has been categorically held that the
Court is also ‘State’ within the meaning of Article 12 of the Constitution of India. Thus, Court
can also act as ParensPatriae so as to meet the ends of justice.Conceptually, the ParensPatriae
theory is the obligation of the State to protect and take into custody the rights and privileges of
its citizens for discharging its obligations93

In kakumanupedasubhayya v kakumanuakkamma94 , the sovereign as parenspatriae and is indeed

under a duty to protect the interests of minors.that function has devolved on the Courts.In the
discharge of that function, therefore,they have the power to control all proceedings before them
wherein minors are concerned.

The Directive Principles as well as the Fundamental Rights enshrined in our Constitution make it
imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and
where the citizens are not in a position to assert these rights, the State comes into picture and
protects the rights of such Citizens.While discharging these commitments, the state may even
deprive some rights and privileges of the individual victims or their heirs to protect their other
important rights in a better manner and secure the ends of social welfare.

4.5 FGM is banned and termed illegal among various countries:

The practice of FGM/C is criminalized in more than 30 countries around the world. A number of
countries have declared the applicability of child protection laws to female genital
mutilation/cutting, while others have enacted and applied specific provisions for the elimination
of female genital mutilation/cutting. Child protection laws provide for state intervention in cases
92
1976 (1) SCR 906.
93
CharanLalSahu Etc. v. Union Of India And Ors., AIR 1990 SC 1480.
94
in which the State has reason to believe that child abuse has occurred or may occur. Also,
specific laws enacted to address domestic violence can be used to prevent and provide necessary
support to women who are at the risk of facing FGM/C.

Under the United Kingdom Female Genital Mutilation Act, 2003, (hereinafter UK FGM Act) not
only female genital mutilation is a crime, but anyone who abets it is also to be held liable. Below
are the relevant provisions.Section 1 of UK FGM Act, 2003: “Offence of female genital
mutilation - (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.” Section 2 of UK FGM
Act, 2003: “Offence of assisting a girl to mutilate her own genitalia - A person is guilty of an
offence if he aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the
whole or any part of her own labia majora, labia minora or clitoris.” In the case of DI (IFA -
FGM) Ivory Coast v. Secretary of State for the Home Department95the court held that“Any cut or
nick to the clitoris will amount to mutilation.”

The Court of Justice in European Union in the matter of Bundesrepublik Deutschland v. Y96 held
that when 'a woman is at risk of being subjected to forced genital mutilation [...] there is plainly
and unanswerably an act of persecution. The suffering liable to occur is, in itself, serious and
irreparable, and the inability of a State to protect its citizens from such abuses necessitates
international protection.'

Thus, it is the duty of the State to protect its female citizens by banning the heinous
practice of FGM and debar it from hiding behind the shroud of religious practice.

95
[2002]
96
(C-71/11), Z (C-99/11), C-71/11 and C-99/11