ITM II NATIONAL MOOT COURT COMPETITON , 2019

MEMORIAL FOR RESPONDENT

TEAM CODE -03

BEFORE THE HON’BLE

SUPREME COURT OF ZINDIA

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

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

UNDER ARTICLE 32 OF THE CONSTITUTION OF ZINDIA

In the matter of Article 14 and Article 21

of Constitution of Zindia

Sulekha Tiwari…………….…………………………………………………PETITIONER

v.

Union of Zindia & Others………....……………………………………RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF ZINDIA

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 TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................................. 3
STATEMENT OF JURISDICTION......................................................................................6
STATEMENT OF FACTS .....................................................................................................7
ISSUES RAISED .....................................................................................................................8
SUMMARY OF ARGUMENTS.............................................................................................9
WRITTEN PLEADINGS

ISSUE I:
WHETHER THE PRACTICE OF FEMALE GENITAL MUTILATION (FGM) OR
‘KHATNA’ SHOULD BE BANNED RELYING ON THE PRINCIPLES AND
OBLIGATIONS OF INTERNATIONAL INSTRUMENTS AND THE UNITED NATIONS
GENERAL ASSEMBLY RESOLUTION PASSED IN DECEMBER 2012 REGARDING
RIGHTS OF THE CHILD BANNING
FGM?.....................................................................................................................................10

A. Unjustifiable Grounds in Incorporating The UN Resolution For Banning..........................10

B. Theory of Dualism.............................................................................................................10
C. Protective Principle under the State Jurisdiction.............................................................11
D. Need for Municipal Law....................................................................................................11

ISSUE II:
WHETHER THE CLAIM FOR ABOLITION OF FEMALE GENITAL MUTILATION IS
IN VIOLATION OF ARTICLE 25 AND 26 OF THE CONSTITUTION?............................13

A. Dohra community as a religious denomination..................................................................13

B. Dohra community in an ambit of minorities group.............................................................15
C. Relevance of Article -25 in respect of FGM........................................................................15
D. Voluntary participation –FGM as an obligatory religious practice.....................................16
E. Test for FGM as an essential part of the community...........................................................17

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ISSUE III:
WHETHER THE PRACTICE OF FGM ATTRACTS PUNISHMENT UNDER THE
PROVISIONS OF INDIAN PENAL CODE, THUS SHOULD BE DECLARED AS
ILLEGAL AND BE MADE A PUNISHABLE OFFENCE IN ZINDIA ?............................20

A. FGC is also a significant rite of passage in communities...............................................20

B. Medical purpose and other related reasons.....................................................................22

PRAYER.................................................................................................................................25

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INDEX OF AUTHORITIES

LIST OF ABBREVIATION

And

S. Section

AIR All India Reporter

Asst. Assistant

CEDAW Convention on the Elimination of All Forms of

Discrimination against Women

DEVW Declaration on Elimination of Violence against Women

ed. Edition

ICCPR International Convention on Civil and Political Rights

ICESCR International Convention on Economic, Social and

Cultural Rights

Ltd. Limited

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

UDHR Universal Declaration for Human

u/s. Under Section

v. Versus

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CASES

 Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and

others
 Jolly George Verghese v. Bank of Cochin
 Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005
 Raja Bira Kishore Deb v. State of Orissa,
 Rev. Stainislaus v. State of Madhya Pradesh and others
 Sardar Syedna Taher Saifuddin Saheb v. State of Bombay,
 Seshammal v. State of Tamilnadu : [1972]3SCR815 ,
 Shastri Yagnapurushadiji and others v. Muldas Bhundardas Vaishya and Anr ,
 Shayara Bano
 Solar Panel case
 SSTS Saheb v. State of Bombay 1962 (Supp) 2 SCR 496,
 State of West Bengal v. Kesoram Industries
 State of West Bengal v. Kesoram Industries
 The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005,
 The Commissioner, Hindu Religious Endowments

BOOKS

1. Basu D.D , Constitution of India ,14th edition 2009, LexisNexis, Butterworths

Wadhwa Publication Nagpur.

2. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.

3. Rajendra Prasad, Law of Social Status, Edition 1998, Hindu Law House.

4. Seervai H.M. , Constitutional law of India, 4th Edition 2002, Volume 2, Universal
Book Traders.

5. Shukla V.N , Constitution of India, 11th edition 2008, Eastern Book Company.

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LEGAL DATABASES

1. Manupatra

2. SCC Online

3. West Law

4. Hein Online

LEXICONS

1. Aiyar Ramanathan P , Advanced Law Lexicon, 3rd Edition, 2005, Wadhwa Nagpur.
2. Garner Bryana, Black‟s Law Dictionary,7th Edition,1999

NATIONAL LEGISLATIONS

1. Goa Children’s Act, 2003, India

2. Indian Penal Code,1860
3. Prohibition Of Child Marriage Act, 2006, India
4. Protection Of Children From Sexual Offences Act, 2012, India
5. The Constitution Of India, 1950
6. The Protection Of Women From Domestic Violence Act, 2005, India
7. The Rights Of Persons With Disabilities Act, 2016, India

INTERNATIONAL CONVENTIONS

1. Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW)
2. Declaration on Elimination of Violence against Women (DEVAW)
3. General Recommendation No. 14 of the CEDAW on Female Circumcision (1990)
4. General Recommendation No. 19 of the CEDAW
5. International Convention on Civil and Political Rights (ICCPR)
6. International Convention on Economic, Social and Cultural Rights (ICESCR)
7. The Joint General Recommendation/General Comment No. 31 of the Committee on the
Elimination of Discrimination against Women and No. 18 of the Committee on the
Rights of the Child.
8. Universal Declaration for Human Rights (UDHR)

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Zindia has the jurisdiction in this matter under

Article 32 of the Constitution of Zindia which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred
by this Part.”

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STATEMENT OF FACTS

 Ruhani Naaz, 7 years old, lives in Mendi Bazaar in Numbai city of Zindia. She belongs
to Dohra community, a sub-sect 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.
 On reaching there, Ruhani was asked to lie down, her hands and legs were held by her
grandmother. A woman 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. 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.
 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.

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STATEMENT OF ISSUES

ISSUE I:

Whether the practice of of Female Genital Mutilation (FGM) or ‘Khatna’ should be

banned relying on the principles and obligations of International Instruments and the
United Nations General Assembly resolution passed in December 2012 regarding rights
of the Child banning FGM?

ISSUE II:

Whether the claim for abolition of female genital mutilation is in violation of article 25
and 26 of the constitution ?

ISSUE III:

Whether the practice of FGM attracts punishment under the provisions of Indian Penal
Code, thus should be declared as illegal and be made a punishable offence in Zindia ?

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SUMMARY OF ARGUMENTS

ISSUE I:

Whether the practice of Female Genital Mutilation (FGM) or ‘Khatna’ should be banned
relying on the principles and obligations of International instruments and the United
Nations General Assembly resolution passed in December 2012 regarding rights of the
Child banning FGM?

It is humbly submitted before the Hon’ble Court (hereinafterRespondents) that the practice of
Female Genital Mutilation (FGM) or ‘Khatna’ cannot be banned relying upon the principles
and obligations of International instruments, asthose are not treaties but merely UN Resolutions
that even if they are assumed to be treaties, they would not be self-executory in Zindia, and that
treaties could not operate as legislation in an area protected under Articles 25 and 26.

Issue II

Whether the claim for abolition of female genital mutilation is in violation of article 25
and 26 of the constitution?

It is humbly submitted before the Hon’ble Court (hereinafter Respondents) that, It has been
wrongly contented by the petitioner that the practice of Female Genital Mutilation (FGM) is
against humanity norms, The practice is almost 1400 years old. On the aforesaid foundation,
it is seriously urged that various steps, commands and directions issued by the competent
religious authorities have made the said practice an integral part of the religion of the Dohra
Community and a protection in that regard is sought under Article 26 of the Constitution.

Issue III

Whether the practice of FGM attracts punishment under the provisions of Indian Penal
Code, thus should be declared as illegal and be made a punishable offence in Zindia ?
It is humbly submitted before the Hon’ble Court (hereinafter Petitioner) that, the practice does
not attract the provisions under IPC and should not be banned and considered as a punishable
offence rather the practice of FGM should be farely categorised and should be legalised
allowing the age old custom to be followed freely in a regulated manner as Circumcision is
one of the Sunnahs of the Fitrah, as is indicated by the words of the Prophet himself.

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ARGUMENTS ADVANCED

I.THE PRACTICE OF FEMALE GENITAL MUTILATION (FGM) OR ‘KHATNA’

SHOULD NOT BE BANNED RELYING ON THE PRINCIPLES AND OBLIGATIONS
OF INTERNATIONAL INSTRUMENTS AND THE UNITED NATIONS GENERAL
ASSEMBLY RESOLUTION PASSED IN DECEMBER 2012 REGARDING RIGHTS
OF THE CHILD BANNING FGM

It is humbly submitted before the Hon’ble court (hereinafter Respondent) that the petitioner
does not possess locus standi to claim the ban on FGM practiced by the particular community.
So far as the several international treaties relied upon by the petitioners, those are not treaties
but merely UN Resolutions that even if they are assumed to be treaties, they would not be self-
executory in Zindia, and that treaties could not operate as legislation in an area protected under
Articles 25 and 26.

A. Unjustifiable grounds in incorporating the UN Resolution for banning

(¶1.)It is submitted by the respondents that the claim for banning the practice of Female Genital
Mutilation by the petitioners does not possess any Locus Standi Principle as there exists a larger
number of unjustifiable grounds in incorporating the UN Resolutions and such a International
Obligation cannot be a self-executory clause in Zindia pertaining to the other International
principles.

B.Theory of dualism

(¶2.)It is contended that principles of International Law cannot be resorted to assert jurisdiction
since it does not form a part of the law of the land unless expressly made so by the legislative
authority. Recently, the Supreme Court of India in State of West Bengal v. Kesoram Industries1
reiterated that India follows the “doctrine of dualism”. Dualism, emphasize the difference
between National and International law and require the translation of the later into former, as
Interested law confer no rights cognizable in the municipal courts. It is thus submitted that the,
International law does not become binding under the Indian constitution until an appropriate
domestic legislation is enacted to give effect to it. This is the principle of dualism and is

1
(2004) 10 SCC 201
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reflected in Article 253, which gives parliament the power to make laws that implement
international law.

C.Protective Principle under the state jurisdiction

(¶3.)It is submitted according to Justice Krishna Iyer, in the case of Jolly George Verghese v.
bank of Cochin2 , to bind a court to an international treaty or principal, the municipal law must
be changed to that effect. Since Zindia is a common law country, adhering to the criminal
justice structure of Zindia, it may be presumed that it, too, follows a dualist approach, and in
order to ensure a protective principle the State authority is under an obligation to enact a similar
legislation to pursuit in banning the practice of Female Genital Mutilation. Thus the petitioners
claim in banning the age old custom cannot be given place under the purview of Protective
Principle of the State with regard to State Jurisdictions, Thereby it is submitted that invalidating
the applicability of the Protective principle for banning Female Genital Mutilation is justifiable

D.Need for a municipal law

(¶4.)Indeed, many cases decided by high courts and the Supreme Court reflect the dualist
approach of the Indian legal system. In the words of justice Krishna Iyer in Jolly George
Vergese v. Bank of Cochin, “until the Municipal Law is changed to accommodate the [treaty],
what binds the courts is the former not the latter”. In light of this judgement when no
Municipal law having a binding effect on criminalizing or banning a customary practice of the
Islamic religion, it is submitted before this Hon’ble court to disregard the contention posed by
the petitioners in banning the practice of FGM. A supportive judgement is also submitted by
the respondents for justifying our contentions, the Supreme Court in State of West Bengal v.
Kesoram Industries reiterated that India follows the “doctrine of dualism” and that “a treaty
entered into by India cannot become law of the land unless Parliament passes a law as required
under Article 253.

(¶5.)According to dualistic theory, international law has to be national law as well, or it is

no law at all. It is a well accepted principle under both International and Municipal laws that,
a state accepts a treaty but does not adapt its national law in order to conform to the treaty or
does not create a national law explicitly incorporating the treaty, nothing in accordance with
the claim for International resolution to take effect in banning the practice is justified.
(¶6.)WTO Solar Panel case against the US, the WTO Appellate Body (AB) held that using

2
1980 SCC (2) 360
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international law to interpret India’s domestic laws does not mean that these international
instruments have ‘direct effect’ in the Indian legal system.Thus, It is submitted that the
petitioners claim on banning FGM in accordance with the UN Resolution principle cannot be
justified and one cannot claim that the treaty has become part of national law without
incorporating, Citizens cannot rely on it and apply it.

Therefore it is humbly submitted that this theory holds that international law cannot directly
address itself to individuals; it must be transformed from International Law to National Law
in order to have any effect on individuals. Thus the practice of Female Genital
Mutilation cannot be banned by virtue of the UN Resolution or other International
instruments.

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II. THE PRACTICE OF FGM IS NOT AGAINST HUMANITY NORMS AND THE
CLAIM FOR ITS ABOLITION VIOLATES ARTICLE 25 AND 26 OF THE
CONSTITUTION

It is humbly submitted before the Hon’ble Court by the council (hereinafter Respondents), that
it has been wrongly contented by the petitioner that the practice of Female Genital Mutilation
(FGM) is against the humanity norms, The practice is almost 1400 years old. On the aforesaid
foundation, it is seriously urged that various steps, commands and directions issued by the
competent religious authorities have made the said practice an integral part of the religion of
the Bohra Community and a protection in that regard is sought under Article 26 of the
Constitution.

(¶1.) ‘Taharah’ or ‘purity’, which is one of the 7 pillars of the Fatimid school, requires the
performance of ‘khafd’ or FGM- it is believed to secure the religious and spiritual purity which
is necessary for offering prayers. The practice was not commenced yesterday it is an age-old
custom which makes the reason strong enough to allow it to continue.

(¶2.)It is said that, Prophet Abraham had circumcised himself with an axe at the age of eighty
years, upon being ordered by ‘Allah’ to do so. “Both MC and FGM are considered as a
obligatory religious practices and any other interference with the genitalia is prohibited. The
scriptures direct FGM to be performed at the age of 7 when the elasticity of the prepuce is
appropriate and it confers an exclusive discretion of the mother of the child, who acts by virtue
of the parent.

A.Dohra Community as a religious denomination

(¶3.)In the light of the facts stated The Dohra Community is a sect under Islamic religion, a
branch of Shia Islam who follow the Fatimid school, The Dohra community is one of the most
progressive, prosperous and egalitarian societies in the Islamic world where men and women
are treated equally and there is a high degree of literacy rate among both men and women. It is
must to be noted that talaq-e-biddat, which was struck down in Shayara Bano3, was never
practiced within this community. It is submitted that this society cannot be depicted as a

3
(2017)

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backward society observing barbaric rituals. It is submitted that FGM is considered as a social
norm entrenched in the culture, this practice has been touted as a religious or cultural practice
that is needed to control women’s sexuality which have health benefits which is further dealt
in the contentions. Female Genital Mutilation is an integral part of our culture. It shouldn’t be
banned because it helps prepare our young girls for marriage and it curbs promiscuity.

(¶4.)As contented their practice can be ensured and protected under Articles 25 to 28,
Article 25 states that every individual is “equally entitled to freedom of conscience” and has
the right to profess, practice and propagate religion” of one’s choice
Thus Personal law has provided with constitutional protection” under Article 25, which grants
individuals the freedom as a Fundamental right. The Dohra community which as stated above
a sect of Islam religion fall under the ambit of religious denominations whose rights are
protected under Article 26. It is submitted that the definition of religious denominations as
Mukherjea J, borrowed the meaning of the word denomination from the Oxford Dictionary
defined religious denomination as "a collection of individuals classed together under the same
name, a religious sect or body having a common faith and organisation and designated by a
distinctive name”. The really distinctive feature about each one of these sects was a shared
belief in the tenets taught by the teacher-founder.4

(¶5.)The main objectives declared in the Preamble are “to secure to all its citizens liberty of
belief, faith and worship”. Since India is a multi-religion country and a secular state, it
allows full freedom to all the citizens to have faith in any religion and to worship, the way
they like. But this should not interfere with the religious beliefs and ways of worship of other
fellow beings and the rights concerned with such religious denominations are also protected 5,
being it a majority or any section thereof6, and protection of such religion of the minorities
becomes essential so that the minorities may not feel neglected or undermined under the impact
of the majority rule.

4
(S.P. Mittal v. Union of India)
5
DR. Subramaniam Swami v. Tamil (AIR 2015 SC 460)
6
(T.M.A Foundation v. State of Karnataka (AIR 2003 SC 355)

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B.Dohra Community in the ambit of Minorities group

(¶6.)In Articles 29-30 major provisions have been made:

‘Protection of interests of minorities: Any minority group having a distinct language, script or
culture of its own shall have the right to conserve the same.’

(¶7.)The petitioners have pressed into service the decisions of this Court in Sardar Syedna
Taher Saifuddin Saheb v. State of Bombay,7 Raja Bira Kishore Deb v. State of Orissa,8 Shastri
Yagnapurushadiji and others v. Muldas Bhundardas Vaishya and Anr9, wherein the concept of
religious denomination was discussed by this Court. It is just to submit that mere difference
in practices carried out by the Dohra community can accord to them the status of separate
religious denominations, as the practice of FGM is not a social discrimination but is only a
part of the essential spiritual discipline related to this particular community and is clearly
intended to keep the mind of the women away from the distraction related to sex as the
dominant objective of the community is the creation of circumstances in all respects for the
successful practice of spiritual and self-discipline.

C.Relevance of Article 25 in respect of Female Genital Mutilation

(¶8.) “Freedom of conscience and free profession, practice and propagation of religion;
Subject to public order, morality and health and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practise and
propagate religion”10

(¶8.)Public order: Public order refers to the normal standards and operations of society. In the
context of the law, crimes against public order are crimes that cause a disturbance to or
violation of this order. What constitutes a public-order crime can vary significantly as time
passes. For example, marijuana use has been decriminalized in many states in America.
However, it was formerly viewed as a public-order crime in many of these places. Similarly,

7
1962 AIR 853
8
1964 AIR 1501
9
1966 AIR 1119
10
Article 25, Indian Constitution

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whatever contentions made for penalizing FGM can be decriminalized if properly regulated
which in turn shall be effected if legalizing the practice of FGM.
(¶9.)Morality: It is defined under Oxford dictionary as A particular system of values and
principles of conduct. Campaigns like “ZERO TOLERANCE” are in fact violating the
freedom of expression and are forbidding a platform to debate. This is highly against morality.
Only if freedom to express is given the true intentions and real wisdom behind the practices
mention in Sunnah can be brought out. It is not the practice but the campaigns and contentions
against the custom that lacks morality.

(¶10.)Health: World Health Organization (WHO), defined Health as being “a state of

complete physical, mental, and social well-being and not merely the absence of disease or
infirmity” here in the present case, FGC is a significant rite of passage in some communities
and women are accepted as a complete adult and fit for marriage and social connections in the
society. If this practise is Criminalised, then It would highly impact her mental health, social
well being, and thus even might cause physical illness as the rite to passage and certain other
civil rights under UDHR is also violated.

(¶11.)The right to practise religion to every individual and the act of practice is
concerned, primarily, with religious worship, rituals and observations11 as held in Rev.
Stanislaus v. State of Madhya Pradesh and others12.Further, the Right to practise religion under
Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally
available to both men and women of all age groups professing the same religion then the
practice of FGM, which deliberately is a non-discriminatory process which encompasses for
both men and women.

Thus relying on this stand, the council submits that the banning of Female Genital Mutilation
would adversely affect the Fundamental right to profess, practice and propagate a custom
under religion

11
Article 25(1)
12
(1977) 1 SCC 677

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D.Voluntary participation- FGM as a obligatory religious practice

(¶12.)It is submitted that the practice of FGM is an essential part of the religion as practised
by Dohra Community and their right to practise and propagate religion is protected under
Articles 25 and 26 of the Constitution of India. Article 21 would not be attracted as the practice
is voluntary showing respect to the religious beliefs and it is not done by any kind of societal
imposition.

(¶13.)The freedom to practise a religion freely without with any fictitious and vague constraint
is the case of Acharya Jagadishwarananda Avadhuta, wherein the Court observed thus: “The
full concept and scope of religious freedom is that there are no restraints upon the free exercise
of religion according to the dictates of one's conscience or upon the right freely to profess,
practice and propagate religion save those imposed under the police power of the State and
the other provisions of Part II of the Constitution. This means the right to worship God
according to the dictates of one's conscience. Man's relation to his God is made no concern
for the State. Freedom of conscience and religious belief cannot, however, be, set up to avoid
those duties which every citizen owes to the nation; e.g. to receive military training, to take an
oath expressing willingness to perform military service and so on.”

(¶14.)Therefore, it can be said without any hesitation or reservation that the practice of FGM
that stipulates circumsion in both men and women, is not a clear violation of fundamental right
of women. Making FGM as unconstitutional against their religious belief which is in no
consequence to fundamental right, makes their fundamental right under Article 25(1) a dead
letter. It is clear as crystal that, as long as the devotees, irrespective of their gender and or age
group, performing FGM within their community, it is their legal right to enter into a practice
ones own religious beliefs. The women, in the case at hand, belong to the community and so,
there is neither any viable nor any legal limitation on their right to perform FGM and offer their
prayers to the deity.
E.Test for FGM as a essential part of the community

(¶15.)What is meant by 'an essential part or practices of a religion ?

 Essential part of a religion means the core beliefs upon which a religion is founded.

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 Essential practice means those practices that are fundamental to follow a religious
belief.
 It is upon the cornerstone of essential parts or practices the superstructure of religion
is built. Without which, a religion will be no religion.
 If the taking away of that part or practice could result in a fundamental change in the
character of that religion or in its belief, then such part could be treated as an essential
or integral part.

(¶16.)In Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and

others the Court has elaborately discussed the true nature of an essential practice and has further
laid down the test for determining whether a certain practice can be characterized as essential
to a particular religion in order to guarantee protection under the Constitution. The Court has
opined: "The protection guaranteed under Articles 25 and 26 of the Constitution is not confined
to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore,
contains a guarantee for rituals, observances, ceremonies and modes of worship which are
essential or integral part of religion. What constitutes an integral or essential part of religion
has to be determined with reference to its doctrines, practices, tenets, historical background
etc. of the given religion.”1314

(¶17.)In the light of the above authorities, it has to be determined whether the practice of FGM
is to be regarded as an essential part of the Dohra community and whether the nature of
community would be altered without the said exclusionary practice. The answer to these
questions, in our considered opinion, is in the firm positive. It can be said that circumcision of
girl child could be regarded as an essential practice of Dohra community and on the contrary,
it is an essential part of the Dohra community to practiced clearly intended to keep the mind of
the women away from the distraction related to sex as the dominant objective of the community
is the creation of circumstances in all respects for the successful practice of spiritual, self-
discipline and offer their prayers to the deity, A religion may not only lay down a code of
ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies

13
, The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005,
14
SSTS Saheb v. State of Bombay 1962 (Supp) 2 SCR 496, and 77 Seshammal v. State of Tamilnadu :
[1972]3SCR815 ,

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and modes of worship which are regarded as integral parts of religion, and these forms and
observances might extend even to matters of food and dress.15.

(¶18.)In the absence of any scriptural or textual evidence, we can accord to the exclusionary
practice is in existence for many centuries, their prevails the custom been followed by the
Dohra community. Therefore, there seems to be continuity in the exclusionary practice
followed by the Dohra community, it can be treated as an essential practice.

Thus it is submitted by the council that, the practice of FGM is not against humanity norms
and the claim for its abolition violates article 25 and 26 of the constitution

15
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, 1954 SCR 1005.

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III. THE PRACTICE OF FGM DOES NOT ATTRACT THE PUNISHMENT UNDER
THE PROVISION OF INDIAN PENAL CODE AND SHOULD NOT BE BANNED

It is humbly submitted before the Hon’ble Court by the council (hereinafter Respondents), that
the practice does not attract the provisions under IPC and should not be banned and considered
as a punishable offence rather the practice of FGM should be fairly categorised and should be
legalised allowing the age old custom to be followed freely in a regulated manner as
Circumcision is one of the Sunnahs of the fitrah, as is indicated by the words of the Prophet
himself.

A. FGC is a significant rite of passage in communities

(¶1.)FGM practitioners see the procedures as marking not only ethnic boundaries but also
gender difference. According to this view, male circumcision defeminises men while FGM
demasculifnizes women. Criminalizing female genital cutting (or FGC) punishes women for
observing their culture and holds some cultures superior to others.

(¶2.)The practice has been associated with marriage and the consequences that come with it,
like pulling girls out of formal education and putting them at greater risk of domestic violence
and medical complications from teen pregnancy.Moreover, the purpose is to reduce a
woman's sexual desire so that her husband can more easily take several wives and she
wouldn’t be psychologically affected to the extent other women would if not circumcised.Islam
may enjoin or forbid something and the people – or most of them – may not be able to see the
wisdom behind this command or prohibition.

(¶3.)In that case we are obliged to obey the command or heed the prohibition and to have
certain faith that the laws of Allah are all good, even if we cannot see the wisdom behind them.
But FGC is also a significant rite of passage in some communities, including many of
Kenya’s; it’s when a girl becomes a woman. Without the cut, women are often barred from
participating in society as full adults.

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(¶4.)Circumcision is one of the Sunnahs of the fitrah, as is indicated by the words of the
Prophet (peace and blessings of Allah be upon him): "The fitrah is five things – or five things
are part of the fitrah – circumcision, shaving the pubes, plucking the armpit hairs, cutting the
nails, and trimming the moustache." narrated by al-Bukhaari (5889) and Muslim (257).

(¶5.)Undoubtedly with regard to the Sunnahs of the fitrah, some of the wisdom behind them is
obvious, and that includes circumcision. There are reports in the Sunnah which indicate that
circumcision for women is prescribed in Islam. In Madeenah there was a woman who
circumcised women and it was said to be done based on words of the Prophet.
There are clear benefits to it which we should pay attention to and understand the wisdom
behind it. Some of the are,
 The secretions of the labia minora accumulate in uncircumcised women and turn rancid,
so they develop an unpleasant odour which may lead to infections of the vagina or
urethra.
 Circumcision reduces excessive sensitivity of the clitoris which may cause it to increase
in size to 3 centimetres when aroused, which is very annoying to the partner, especially
at the time of intercourse.
 Another benefit of circumcision is that it prevents stimulation of the clitoris which
makes it grow large in such a manner that it causes pain.
 Circumcision prevents spasms of the clitoris which are a kind of inflammation.
 Circumcision reduces excessive sexual desire.

(¶6.)Then Dr al-Ghawaabirefutes, a pertinent medical practitioner belonging to the community

answers to those who claim that female circumcision leads to frigidity by noting: “Frigidity
has many causes, and this claim is not based on any sound statistics comparing circumcised
women with uncircumcised women, except in the case of Pharaonic circumcision which is
where the clitoris is excised completely. This does in fact lead to frigidity but it is contrary to
the kind of circumcision enjoined by the Prophet of mercy when he said: “Do not destroy” i.e.,
do not uproot or excise. This alone is evidence that speaks for itself, because medicine at that
time knew very little about this sensitive organ (the clitoris) and its nerves.

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B.Medical Purpose and other related reasons

(¶7.)In fact, the practice is poorly understood and unfairly characterized. Medical research has
found that a high percentage of women who have had genital surgery "have rich sexual lives,
including desire, arousal, orgasm, and satisfaction, and their frequency of sexual activity is
not reduced." American College of Obstetricians and Gynaecologists (ACOG) has strongly
opinioned that surgically tightening the vaginal tissue in itself cannot guarantee influence in
sexual response, since desire, arousal, and orgasm are complex, highly personal responses,
conditioned as much by emotional, spiritual, and interpersonal factors as aesthetic ones.

(¶8.)Reproductive health and medical complications linked to female genital surgery happen
infrequently. Female genital surgery is aesthetic enhancement, not mutilation. In almost
all societies where female genital surgery is performed, male genital surgery also takes place.
Broadly speaking, then, such societies "are not singling out females as targets of punishment,
sexual deprivation, or humiliation.

(¶9.)"Zero tolerance" slogans promoted by anti-mutilation groups are counterproductive. Not

only do they limit thoughtful, respectful dialogue, but they can make genital surgery more
dangerous by driving the practice underground. Legislation and regulations that criminalize
female genital surgery for adult women are discriminatory, because they deny women's
autonomy "to choose what makes them happy with their own bodies.

(¶10.)In fact, once FGC is legalized, medical professionals can be trained properly and deliver
the highest standard of healthcare for women who choose to be cut in medical facilities.

(¶11.)Is it patronizing to insist that brown and black women be jailed for FGC while white
women in the West can get vaginoplasty, or cosmetic surgery for the vulva?
We should not silence women who practice it, but help take down the social and economic
conditions that prevent women from speaking out against tradition.

(¶12.)One (of several) major issues with the WHO, FGM classifications is there not being any
mention of consent. This means that technically, according to the classifications that western
anti-FGM laws are based off of, consenting adult women who get a genital piercing at a tattoo
parlour or a labiaplasty or hoodectomy at a plastic surgeon are mutilated victims of FGM.

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(¶13.)The same respect for bodily autonomy should be extended to consenting adult women
of communities where FGC is a cultural norm. It has been argued that a woman from such a
culture can't *truly* be free to choose and one is actually a "victim of her culture." This can
be no more true than western women who are influenced by their culture into choosing a
"designer vagina" or any other cosmetic surgery based on culturally/socially accepted
aesthetic ideals.

(¶14.)There is only low-risk involved in alleged cutting. It is contented that it shouldn’t really
count as mutilation. Mutilation according to oxford dictionary means “The infliction of
serious damage on something” It is, after all, just a nick and does not amount to serious and
permanent damage. Just like getting tattooed or piercing moreover, far less invasive than
Jewish ritual male circumcision, which is legally allowed on minors in the US, and other
counties, no questions asked.

(¶15.)Based on this discrepancy, if attorneys for the Bohra can show a gendered or religious
double standard in existing law, the ramifications will be not be small. Either male circumcision
will have to be restricted in some way, or “minor” forms of FGM permitted.
The reasons given for practicing FGM fall generally into five categories:

 Psychosexual reasons: FGM is carried out as a way to control women’s sexuality,

which is sometimes said to be insatiable if parts of the genitalia, especially the clitoris,
are not removed. It is thought to ensure virginity before marriage and fidelity afterward,
and to increase male sexual pleasure.
 Sociological and cultural reasons: FGM is seen as part of a girl’s initiation into
womanhood and as an intrinsic part of a community’s cultural heritage. Sometimes
myths about female genitalia (e.g., that an uncut clitoris will grow to the size of a penis,
or that FGM will enhance fertility or promote child survival) perpetuate the practice.
 Hygiene and aesthetic reasons: In some communities, the external female genitalia
are considered dirty and ugly and are removed, ostensibly to promote hygiene and
aesthetic appeal.
 Religious reasons: Although FGM is not endorsed by either Islam or by Christianity,
supposed religious doctrine is often used to justify the practice.

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 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 practitioner

(¶16.)Moreover, clitoris is a vestigial organ. It can be defined as any organ that during the
course of evolution has become reduced in function and usually size and often such organs
have lost their original use. In the context of human evolution, human vestigiality involves
those traits (such as organs or behaviours) occurring in humans that have lost all or most of
their original function through evolution. Although structures called vestigial often appear
functionless. In some cases, structures once identified as vestigial simply had an unrecognized
function.

(¶17.)The examples of human vestigiality are numerous, including the anatomical (such as the
human tailbone, wisdom teeth, and inside corner of the eye), the behavioural (goose bumps
and palmar grasp reflex), and molecular (pseudogenes).Like appendix in humans. Earlier was
used for digestion but now through evolution it has no use. Clitoris was earlier an organ through
which urination occurred. But right now after evolution the reproductive organs have changed
and it’s just a vestiginal organ that has sexual arousal. It is pertinent to mention that Sexual
arousal is not completely dependant on it alone and thus, performing a nick does not
completely make women frigid.

Thus it is submitted by the council that, the practice of FGM is not against humanity norms
and does not attract any provisions of IPC and it is not just to declare is illegal and banned
rather be legalised and regulated to ensure that there are no mal-practices in the name of
customary the Dohra Community.

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MEMORIAL FOR RESPONDENT

PRAYER

Wherefore in the light of the Issues Raised, Argument Advanced and Authorities Cited, the

Hon’ble Supreme Court may be pleased to:

1. Declare that the practice of Female Genital Mutilation (FGM) or ‘ Khatna’ cannot be

banned relying on the principles and obligations of International instruments and the United

Nations General Assembly resolution regarding rights of the Child banning FGM.

2. Banning the practice of FGM amounts to violation violation of Fundamental Rights

including Article 25 and 26 of the Constitution

3.The practice of FGM is not a punishable offence in Indian Penal Code, 1860

4. The practice should not be declared as illegal and be made a punishable offence in Zindia

AND/OR

Pass any other order, direction or relief that it deems fit in the interest of Justice,

Equity and Good Conscience.

For this act of kindness, the Respondents shall duty bound forever

pray.

Sd/-

(Counsel for the Respondents)

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