Female Genital Mutilation: The ongoing violence against women

Abstract

In the times where India is warming up to the idea of acceptance of LGBTQ+ and non-discrimination on the basis especially the gender and sexual preferences of a person, some inhumane traditions persist in modern India anchored by cultural believes and social practice. One of such practices that have persisted for several millennia is Female Genital Mutilation, a heinous social evil that remains unnoticed by the legislation of India. Religious practices often blur the lines of human morals and just like “Abolition of Sati Pratha” such practices need to be identified and be criticized by law. Although the black and white law alone cannot stop/change societal views, it still necessitates control over such practices to a substantial extent. This article aims to severely and unequivocally criticize the practice of female circumcision, existing legal frameworks and urges the Indian legislature to take some stringent actions against the offenders who daily get away by molesting little girls and tainting their lives forever. We think that equality in society needs to reform from its very niche, the hard-wired traditions that decimate the dignity of any person shall be frowned upon. Mainstream Indian laws are just not apt to resolve the problem of gender inequality especially Female Genital Mutilation. The author albeit explores the legal perspective against the practice of khatna but is also sentimental and has tried their level best to keep away emotions but still have a strong opinion on the subject. The authors for sake of convenience in reading experience has invariably used FGM, female genital mutilation, khatna, female circumcision, had interchangeably as these terms do overlap. The article concludes by highlighting the ambiguity in the legislation and suggests solutions for doing away with the same.

Keywords: Female Genital Mutilation, khatna, Child rights, legal ethics, religion vs law, consequences on child’s health, Social injustice, Cultural Pluralism

Introduction

 It is the ritual cutting or removal of some or all of the external female genitalia. These misogynist people who in the name of religion, tradition induce social pressure undermining the sexuality of a woman by circumcising their genitals. They are so absorbed by hatred that there is no hesitation in performing upon girls of tender ages of just below one year to fifteen years as a rite of passage.[1] Dr Nahid Toubia – Sudanese Surgeon, women rights activist and Female genital mutilation researcher by way of his research on Female Genital Mutilation published by WHO has strenuously criticized the practice of such circumcision and says “Albeit various genital surgeries are performed nowadays for a variety of medical, cosmetic, psychological or social reasons, Female genital mutilation by way of partly or entirely amputating the external genitalia for non-medical purposes in name of religion, social pressure and to undermine the modesty of a women cause severe trauma to the aggrieved female child.”[2]

Types: 

Type 1: Also known as clitoridectomy, this type consists of partial or total removal of the external part.

Type 2: The external part of the clitoris and labia minora are partially or removed, 

Type 3: The procedure consists of narrowing the vaginal orifice with the creation of a covering seal by cutting and positioning the labia minora and/or labia majora. A small opening is left for urine and menstrual blood to escape.

Type 4: This type consists of all other procedures to the genitalia of women for non-medical purposes, such as pricking, piercing, incising, scraping and cauterization.[3]

The practice is forcefully inflicted on girls of tender age and the issue of consent by a minor individual to non-therapeutic surgery or any physical or psychological act by another, with the consent of parents in the name of religious traditions and performing acts which may be perceived by some as a violation of Rights to Life and Dignity. 

The authority and limitation of parents and guardians to consent or withhold consent on behalf of a minor for treatment or surgery, whether medical or ritualistic, is a subject that requires more comprehensive discussion and needs to be governed. The authors have attempted to lift the veil of secrecy surrounding the practice of FGM. This article is not an eclectic commentary on all the aspects of Female Genital Mutilation. All aspects are inadequately documented and any attempt to review them would be a complicated task. This article assesses the epidemiological status and health complications of female genital mutilation and policies at international, regional and national levels, aims to seek legal guidance in the elimination of such practices.

Background

Analogous to many deep-rooted obscure and irrelevant traditional practices subjecting the modesty of women.  In India, this practice is majorly executed by the Shia Muslims especially the Dawoodi Bohra community where mostly around 80 per cent of girls are circumcised at a tender age like before 7, aka khatna or Chavez as per the Daimul Islam (a sacred book followed by Bohras).[4]

Apart from Shia Muslims FGM is exhaustively Christian and others also perform the practices highly/strongly impacted the services without even others knowing the true devotion of the family towards the religion. Just as several religion-abiding Jain families raise questions towards the performance of any practices in the name of religion and perform the same after several logical explanations and reassurances from the Guru regarding proper methodology. Other religions must endeavour to adopt these preferences and unveil all the secrecy. 

The disputes and discussions regarding date back more than 40 years where the long-stretched arguments related to the practice were drawn out and the practice was strenuously criticized still the practice persists on a weak argument where the term “female circumcision” resembles analogous to male circumcision.

In the medical literature, “circumcision” is used specifically to mean removing the prepuce or foreskin of the penis or the clitoris and the reasons for performing male circumcision are entirely different than those to perform FGM. Male circumcision helps regulate population control whereas FGM has no effect on population control has serious physical and psychosocial consequences which adversely affect the health of the aggrieved. Furthermore, it is a reflection of discrimination against women and girls which leaves women physically, psychologically and sexually damaged and disabled.

Complications

Short term complications

The girl or woman is at significant risk of traumatic bleeding and infection including wound infection, septicaemia, gangrene and tetanus, Necrotising fasciitis has been reported. Deaths from FGM have been reported but there are no figures for direct deaths due to FGM. Other immediate reported complications include damage to other adjacent organs and incomplete healing. However accurate information on the incidence and nature of these complications is not available for all the many reasons described above.

Long term complications

It is increasingly recognised that FGM causes complications throughout the life span and these are:

– Gynaecological, it includes Infection, Genital scarring, Menstrual difficulties, Urinary symptoms, HIV & Infertility

– Obstetric, includes childbirth complications, perineal lacerations and the inevitable need for episiotomy in infibulated parturients.

– Psychological, it includes effect on sexual function, mental health problem 

– Others are defibrillation with bleeding, injury to the urethra and bladder, injury to the rectum, and puerperal sepsis.

FGM is often done without anaesthesia, or medical supervision and sometimes the procedure goes wrong. It often leads to pain, shock, tetanus, genital sores, excessive bleeding, etc. It also has a long-lasting psychological impact on the victims, ranging from sexual disorders, fear of sexual intimacy, nightmares and post traumatic stress disorder. 

Boston-based Mariya Taher (a survivor) When asked in an interview whether she was emotionally damaged? Here is what she has to say: “No, I would say, because it is something that I had to accept and deal with, I am a social worker and it has a lot to deal with gender violence, well it indeed has affected me however it made me the kind of person that I am.”[5]

Leyla Hussein explains her personal story and experience as a psychotherapist working with survivors of FGM: “During my pregnancy, I was extremely traumatised and depressed. Each time I had a medical appointment I was on the verge of passing out. I never felt more anxious whenever anyone touched me or was checked by the medical staff, it was at that moment I realised how deeply FGM has entailed me. We only talk about the physical hurt or discomfort but what needs more awareness is the psychological trauma one had to face, it is something that’s going to stay with one throughout her lifetime. As emotional scars are even harder to heal than physical.”[6]

Moreover, the practice is said to be tradition/custom in Shia law but there is no such mention of this practice in the Quran and is solely done based on Daimul Islam. Such practices possess no benefits to women’s health, it only harasses a woman and prevalence of such activities in modern society further increases the risk factors among female youths in India.

Existing Legal Framework

There are various provisions in India that deals with violence against women and children like Indian Penal Code 1860, Code of Criminal Procedure 1973 and so on. The main function of a law is to punish the accused/wrongdoer. The ones who perform FGM can be penalised under IPC  from section 319 to 326  but mainly with section 324 and 326 for voluntarily causing hurt and grievous hurt.[7]

Article 39 of the Constitution of India being directive principles of state policy and the chapters and clauses of UN Convention on the Rights of the Child, UN Universal Declaration of Human Rights of which is India is a signatory, and against the abuse of girls as well as women of this community, and also against the serious violation of the female body thereby causing permanent deformity/disfiguration to the body of a girl child and subsequently when she becomes an adult woman.

Section 3 of the POCSO Act[8] explains sexual assault on any child by any person. It is established that penetration in sexual offences need not be complete penetration.

Section 375 (Explanation 1) IPC includes the term labia majora which is the type 2 of the FGM. Section 3 of the POCSO act can be read with Explanation 1 of Section 375 IPC. 

However, as stated in various discussions in Lok Sabha “the IPC and POSCO are not sufficient in dealing with cases related to FGM” but until now there has been no progress in the formulation of any laws in this context.

Moreover, there is a severe lack of medical ethics when it comes to FGM and the doctors are not restricted to perform such circumcision or mandated to even report an FIR while performing such circumcisions and that is also a contributory reason for the prevalence of this practice in India. Even so, people from various countries have started to come to India to get their kids circumcised due to a lack of restrictions.

The legal battle against FGM

There have been online petitions circulated against this monstrous practice and for its complete ban, which has been signed by many people including men from other communities, but no legal action has been taken nor any law framed declaring it illegal and punishable in India as the same is performed for non-medical reasons. 

The legal battle against khatna in India began with the Public Interest Litigation filed in Apex Court in May 2017 challenging the practice on the basis that it violates the right to life, the security of the person, the right to privacy, bodily integrity and the freedom from cruel, inhuman or degrading treatment. 

The Minister for Women and Child Development, Maneka Gandhi in May 2017, publicly announced the government’s intention to pass a law banning FGM if the community did not voluntarily abandon the practice in context to the PIL but no headway has been made since nor is there any political interest in pursuing such a law. 

Kashi v/s State of U.P. – SC can institute the religion biased committee which can regulate and form laws penalizing FGM and also retaining the religious sentiments.“When truth meets sunshine, justice will not prevail on living alone but after life’s fitful fever, now the departed will also sleep well.” Satyamev Jayate. 

Considering the increasing tendency and interest in medicalizing FGM in India, the Indian Medical Association needs to be called on to issue a zero-tolerance policy on FGM. FGM violates a fundamental code of medical ethics, which is “First not harm.” 

Awareness needs to be raised of medical doctors who serve Bohra patients. Non-Bohra doctors serving Bohras need to be educated about FGM as their awareness of the practice is very poor. Anti-FGM doctors especially paediatricians must be trained to also counsel Bohra patients (parents of five or six-year-old girls) about the health consequences and risks of FGM.

India: towards Addressing FGM

To address such an issue, any legislative or policy response should address the following components:

– A proper definition of FGM

– Time period for reporting an incidence of FGM

– Duty may be cast on frontline professionals to report 

– Parties to be penalised 

   – those who perform and participate 

   – those that propagate 

   – bonafide informants

– The practice cannot be justified as a religious practice

– Protecting system that helps in preventing FGM 

    – measures in other countries for prevention 

    – awareness generation 

– Support and rehabilitation measures

Critical Analysis

Several contradicting provisions and non-specific legal remedies have led to a widespread increase in the practice of FGM in India. The inadequate steps of the central legislature have led to molestation of female rights, the Lok Sabha[9] has itself stated the void in the provisions is prominent. Sudan has also penalized this practice even when 80% of females suffered the fate of being mutilated. The authors think that this leniency is the very reason for about 100 million girls being mutilated. These absurd practices are treated as normal, “Because deep down, the grandmothers are the ones that are going to get the girls to integrate into the community and they want both the girls and their mothers.” The feelings, beliefs, values, traditions and norms that favour the practice of FGM are not exclusively religious but are also to harass and undermine a particular gender.

Medical institutions have no ethics and do all ill deeds for money: “Now doctors also encash for traditions as health reasons, since many girls have died.” All these key elements should be kept in mind while forming stringent laws to eliminate this heinous practice from India.

Conclusion

India is viewed as a hub for the performance of FGM on Bohra ex-pat/foreign girls. This is primarily due to the recent legal action on FGM amongst Bohras in Australia and the USA, and the lack of an anti-FGM law in India.

“When men are oppressed, it’;s a tragedy. When women are oppressed, it’s tradition.” 

Voices have been raised against this practice and for its ban in India for a long time now. Despite various news reports and articles published to this effect giving information and despite the outcry and volumes of voices raised against FGM and for banning this practise in India, no steps have been taken by the government nor have the online petitions received any response from the government.  

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References

[1]  Female Genital Mutilation – A Matter of Human Rights, Available at: http://reproductiverights.org/sites/default/files/documents/FGM_final.pdf

[2] Female Genital Mutilation an overview, Available at: https://apps.who.int/iris/bitstream/handle/10665/42042/9241561912_eng.pdf?sequence=1&isAllowed=y

[3] https://en.m.wikipedia.org/wiki/Female_genital_mutilation#:~:text=Female%20genital%20mutilation%20(FGM)%2C,of%20the%20external%20female%20genitalia.

[4]  Female Genital Mutilation and India, Available at : https://blog.ipleaders.in/female-genital-mutilation-india/#_ftn3

[5] Harinder Baweja, India’s Dark Secret, Hindustan Times. Available at :https://youtu.be/MKXXVilKCwc

[6] Harinder Baweja, India’s Dark Secret, Hindustan Times. Available at :https://youtu.be/MKXXVilKCwc

[7] Section 320, 322, 324, 326, 334, 335, 336, 337, 338 and 340 of the Indian Penal Code,1860

[8] Section 3(b) of the Protection of Children from Sexual Offences Act, 2012

[9]  Unstarred Question No.466 answered on 20th July, 2018

Author: Teena Sharma and Additi Panda are students at Chanderprabhu Jain College, New Delhi. The views are personal only.