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“khatna”: SC says religious practice should consider public order and morality

In the case against the practice of female genital mutilation (FGM) or “khatna”, widely practised within the Dawoodi Bohra community, a sect of Shia Muslims, the Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud was told on Monday (August 27) that this was a practice that has come down from 1,400 years and is supported by 70,000 women of that community.

Senior counsel Abhisekh Singhvi was arguing on grounds of religion and faith, but the bench said that Article 25 (1) which envisages conditions to profess religion keeping in mind public order and morality, is above any particular religious community. Essentiality is not conclusive.

Sunita Tiwari, an advocate working on child rights and human rights, has filed a public interest litigation petition. She asked the court to direct the State to explicitly ban FGM; declare FGM as a non-bailable, cognizable and non-compoundable offence under the Indian Penal Code, 1860.

The practice involves the removal of either part or all of female genitalia. FGM aims to ‘regulate female sexuality and moderate sexual desires’.

Singhvi insisted that personal views and understanding were immaterial and that historic texts must be considered sovereign. He said that the matter was so sensitive that must be referred to a bench of at least seven judges.

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