Need for Criminalization of Female Genital Mutilation in India: An Analysis

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INTRODUCTION

India is rich in culture, heritage, and religious beliefs; we can say that it is home to several religions and religious practices. Our Indian Constitution under article 25 gives us freedom of conscience and free profession, practice, and propagation of any religion. Our Indian culture is nothing but a heritage of social norms, customs, traditions, rituals, ethical values, morals of the society. There are several communities in India and they all follow their religious practices and Female genital mutilation is none other than those of the beliefs. 

Female genital mutilation famously known as FGM is a process of removal of external female genitalia either partially or fully for non-medical reasons. World Health Organization has perfectly defined this word, it states that Female Genital Mutilation comprises all procedure that involves partial or total removal of the external female genitalia, or another injury to the female genital organs for non-medical reasons

Type I (Clitoridectomy): It includes the partial or total removal of the clitoral glands which is the external and visual part of the clitoris which may be a sensitive part of the feminine genitals and/or the prepuce/clitoral hood which is the fold of the skin surrounding the clitoral glands, which means sensitive part of the clitoris and its adjoining skin.

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Type II (Excision): The partial or total removal of the clitoris and the inner fold of the Vulva which is the labia minora sometimes with or without the removal of the outer fold of the skin of the Vulva.

Type III (Infibulations): This process is basically for narrowing down the vaginal openings by creating a covering seal, which often includes cutting, stitching, and repositioning the labia. This is tremendously painful as the stitching and narrowing down of the vagina and urethra leaves a very less and minor gap and sometimes it needs to be cut to allow sexual intercourse after marriage or even during delivery, which often causes harm to both mother and baby.

Type IV (Unclassified) includes all the harmful, detrimental procedures like piercing, incising, scarping, the genital area of girls.

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Above all of them, type III is considered the most common and severe form of FGM and women undergoes many mental traumas, physical pain, and emotional breakdown

 FGM: Prevalence, Reasons, and Consequences

  • PREVALENCE

FGM is somehow unknown in most of the parts globally. This practice and tradition are relatively common in Islamic northeastern Africa. According to a report of the World Health Organization (WHO), more than 200 million girls and women have undergone this practice in the countries where it is prevalent which means six thousand (6000) per day. The most common age is between 9-12 years but it is also practiced on newborn baby girls and adolescents before marriage and around 3 million girls are at risk of undergoing FGM every year. The prevalence of FGM has been estimated from large-scale national surveys asking women aged 15-49 years if they have themselves or their daughter have been cut. The majority of girls are cut before they attain the age of 15 years.  In most of the countries, the majority of girls were cut before age 5; in Yemen, 85 percent of girls experienced the practice within their first week of life. This is prevalent more in African countries as well as in the Middle East, the procedure performed on girls during FGM also varies mainly with ethnicity. 

REASONS

Female Genital Mutilation is something that is so strongly embedded in our tradition that it forces our women of every age to undergo such practice. We are living in the 21st Century, but still, marriage is considered the only means for economic survival for women, and virginity is seen as a sign of pure, and honor for girls and their parents. The practice of female genital mutilation violates medical ethics and poses direct harm to the females who undergo the procedure. It can also complicate childbirth and pose other unnecessary health risks. The practice of female genital mutilation is unethical. In most cases, the females do not consent to the procedure and are put at risk of many serious and life-threatening health repercussions. 

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Psychosexual reasons: As marriage is considered as the economic survival for women, FGM is administered to regulate women’s sexuality and to control sexual desires which according to belief sometimes said to be insatiable if parts of the genitalia, especially the clitoris are not removed and to maintain virginity of women before her marriage and also to remove impure thoughts and ideas, and therefore FGM is regarded as a way to control woman’s sexuality

  1. Hygiene and aesthetic reasons: It is believed that in some communities, the external parts of female genitals are considered dirty and ugly and therefore are removed to make them more hygiene.
  2. Religious beliefs: No religion promotes FGM or gives a statement for justification for that practice but still practiced among Christians, Jews, and Muslims. Many Muslims believe that cutting is mandatory according to their religion however Quran does not talk about anything related to FGM. According to some Muslim communities, Prophet Mohammed supports FGM as he says “Do not cut deep; this is enjoyable to the woman and preferable to man”.
  3. Socio-economic factors: In many communities, FGM is a prerequisite for marriage. Where women are largely dependent on men, economic necessity can be a major driver of the procedure. FGM sometimes is a prerequisite for the right to inherit. It may also be a major income source for practitioners.
  • CONSEQUENCES

Long Term Consequences: According to WHO, it includes long-term consequences such as stress disorder, vaginal closure due to stitching and scarring, psychological trauma, mental trauma, flashback, painful intercourse, and delivery. Apart from some physical complications, women do suffer emotional and mental consequences such as fear, lack of confidence, shock, etc.

Short Term Consequence: It includes bleeding, severe pain, injury to adjacent tissue of the vagina, infection, pain during menstruation, etc.

EXISTING INDIAN LEGAL FRAMEWORK

Women and Children are considered vulnerable groups. In India, there are so many separate laws on FGM under Indian Penal Code or any other acts but there are some laws that talk about the prevention of rights and status of Women and Children.

Section 324 of IPC: “Voluntarily causing hurt by dangerous weapons or means.– Whoever, except in the case provided for by section 334, voluntarily causes hurt using any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offense, is likely to cause death or using fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or using any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 

Section 326 of IPC: “Voluntarily causing grievous hurt by dangerous weapons or means.–Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt using any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offense, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or using any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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 do so with him or any other person.

Also According to National Policy for Children 2013, the state must take some affirmative measure, legislative policy, or otherwise to promote and safeguard the right of all children to live with equity, dignity, security, and freedom especially to marginalized section, also ensures that all children have equal opportunities; and that no custom, tradition, cultural or religious practice is allowed to violate or restrict or prevent children from enjoying their rights.”

In 2009 Integrated Child Protection Scheme was launched to create and establish an efficient protective system for vulnerable children to include institutionalizing and integrating essential services and strengthening structures for emergency outreach, institutional care, family and community-based care, counseling, and support services; strengthening child protection at family and community level and promoting preventive measures to protect all children from risk and abuse.

Under The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002 it is strictly given under sec 7.6 that carrying sex determination tests as a form of professional misconduct making him/her liable for disciplinary action. Hence, laws that penalize those who perform the offensive act are well known and necessary for the deterrence effect to have any meaning. In a similar vein, those who engage another to perform, those who perform, and those who abet the performance of an act of FGM/C should be held accountable and be punished by law.

COMPARATIVE ANALYSIS BETWEEN DIFFERENT COUNTRIES

INDIA: There are no such specific laws for FGM, however in 2017, a Delhi-based lawyer filed a PIL which states that FGM is a violation of human rights and amounts to a violation of women’s right to life and dignity. Also, it is performed on minors so it will amount to an offense under the POCSO act as well. In many places, the practice of FGM/C is often linked to a ritual marking the coming of age and initiation to womanhood. In a study conducted among women of the Dawoodi Bohra community, it was found that religious requirements, tradition, custom, and the wish to curb the girl’s sexuality were the main reasons for the practice. 

Articles 25 and 26 of the Indian Constitution guarantee the right to freedom of religion and freedom to manage religious affairs. The individual right to religious freedom is guaranteed under Article 25. However, such freedom is subject to provisions of Part III of the Indian Constitution i.e., to fundamental rights including the fundamental right to equality and non-discrimination based on sex as guaranteed under Articles 14 and 15 of the Indian Constitution. Such freedom is also subject to public order, morality, and health.

Article 21 – Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to the procedure established by law

 SUDAN: It is estimated that nearly 9 out of 10 females undergo FGM, in July 2020, the highest governing body of Sudan ratifies a law that criminalizes FGM and also held that the practice undermines the dignity of a woman and violates human rights as well, it also talks about imprisonment up to 3 years.

 NEW ZEALAND: On 30th July, the country welcomed the passage of the Crimes ( Definition of FGM) Amendment bill which will protect women from the painful practice of FGM/C. The bill updates the laws of New Zealand to protect women and children from all the 4 types of FGM which are performed, it came into effect through the work of the Ethnic Minority Women’s Rights Alliance of Aotearoa.

CONCLUSION

FGM is a practice that has not been mentioned in our Indian laws and if there are some cases related to FGM it will cover any form of hurt. It has been proved that there is no medical use of this practice and how it violates the fundamental right of women and children and human rights internationally. FGM is considered a barbaric practice that has many health and social hazard and stigma which not only affects the victims but also the other partner after marriage.

Some community believes it to be religious practice provide under art. 25 of Constitution but art. 25 also talks about some exceptions which mean no religious practices followed should be against anyone’s health, morality, and public order and therefore it should not be considered as a religious practice on any ground.

Many countries have passed the law against FGM for its criminalization and now it is our turn to make it possible for the protection of our girl child from this heinous crime.

REFERENCES

  1. UNFPA, ‘Implementation of the International and Regional Human Rights Framework for the Elimination of Female Genital Mutilation’, November 2014, at p. 16
  2. R. Ghadially, ‘All for ‘Izzat’: The Practice of Female Circumcision among Bohra Muslims’, Manushi, No.66, September – October 1991
  3. https://sahiyo.com/2016/01/ dated April 13, 2016
  4. https://www.scobserver.in/court-case/ban-on-female-genital-mutilation
  5. https://scroll.in/article/962307/if-sudan-can-ban-female-genital-mutilation-why-cant-india

 

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