The Dawoodi Bohra [‘DB’]Community is over a million people strong. India houses most adherents. The DB are a sub-sect of the Shia Ismaili branch of Muslims. Unfortunately, despite great wealth and education, the adherents and the administration of the community has retained the practice of Female Genital Mutilation (Khafz). The community is small yet politically powerful. India’s current PM and the Dai-ul-Mutlaq (Maulana Mufaddal Saifuddin) have a public friendship. Thus, it is essential to examine the socio-political context and the legal reforms necessary to rid India of the heinous practice of Female Genital Mutilation or Circumcision.

The DB are spread across the world, and countries like the USA, UK, and Australia have tried members of the community for violating their laws against FGM. The most recent judgement from the High Court of Australia (their apex court) has convicted three DB individuals for violating s.45(1)(a) that criminalizes any “person who … otherwise mutilates… any part of the… clitoris of another person” This section was introduced into the Crimes Act 1900 (NSW) in 1994 through the Crimes (FGM) Amendment Act. Though the Court of Criminal Appeals did not find that the act of “nicking” falls within the definition of “otherwise mutilates”, the High Court has favored the Crown and expanded the definition to encompass the ritualistic practice of Khafz. The Australian case speaks of an elaborate conspiracy where the head cleric in New South Wales received instructions from Mumbai to mislead the investigators and save the community members from conviction.

Meanwhile, India is fighting this battle at the initial stage in Sunita Tiwari v. UOI. The case has been referred to the larger bench and is being heard alongside the Sabrimala case among others. The community leader claims that Khafz and FGM are entirely different and have no connection with one another. They have tried to argue that the practice is safe under A.25 of the Constitution. While Ms. Indira Jai Singh, representing WeSpeakOut (An NGO founded by survivors and working against the practice) has been trying to steer the court away from this semantic maze. The petitioners have prayed that the practice is declared illegal, at least within POCSO and/or the IPC. It is important to note that the ban on FGM is Goal 5.3 of the Sustainable Developmental Goals. Further, among other international obligations, all nations that have ratified the Convention on Child Rights ought to work against it under Article 24.

This paper aims to comparatively analyze the two cases to explore potential legal solutions against FGM in India. The paper will compare the Constitutional laws, the governmental mechanisms for child welfare and the socio-political scenario in India and Australia, but only within the scope of the said cases. It will explore potential solutions, with the Australian case as a model for India’s progress.