The Kerala High Court in its order dated June 5, 2023, quashed a POCSO case against women rights activist Rehana Fathima who had been accused of allowing her minor children to paint on her semi-nude body.
Justice Kauser Edappagath observed that it was not possible to infer any sexual intent behind the act.
Background
The 33-year-old petitioner had posted a video in the year 2020 on her social media platforms showing her two minor children, a boy (aged 14) and a girl (aged 8), painting on her semi-nude torso carrying the hashtag ‘Body Art and Politics’. The video, uploaded on YouTube and shared through her personal Facebook account, had triggered massive outrage, with several people slamming her for subjecting her children to what they considered to be an obscene and vulgar act and then posting the same for the world to see.
Defending her act, Fathima referred to her actions as a form of self-expression and an attempt to break free from social and cultural taboos that constrain women’s bodies.
Later, Rehana was charged under various provisions of the POCSO, Juvenile Justice, and Information Technology (IT) Acts.
In 2020, another judge of Kerala High Court – Justice PV Kunhikrishnan, after watching the video, had primarily inferred that Rehana used her children for pornographic purpose.
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Arguments by Petitioner
The learned counsel for the petitioner Sri. Renjith B. Marar, submitted that a close reading of the FIR, FIS, statement of the witnesses, and the documents on record would reveal that none of the offences alleged against the petitioner are made out.
The learned counsel further submitted that the uploaded video could not be watched in isolation without understanding the message accompanying it, which makes it clear that the petitioner intended to normalize the female body and to spread a message to not allow distorted ideas of sexualization in the minds of children, besides challenging the double standard prevailing in society regarding the default sexualization of the female body as opposed to the male body.
The learned counsel also submitted that since there are no sufficient grounds for proceeding against the petitioner, the Court below ought to have discharged her under Section 227 of Cr.P.C. According to the counsel, body art in the form of nudity is an expression protected under Article 19(1)(a), read with Article 21 of the Constitution of India.
Submissions by Public Prosecutor
Smt. T.V. Neema, the learned Senior Public Prosecutor, submitted there are materials to presume that the petitioner has committed the alleged offences. In the video, the petitioner is seen semi-nude wearing half trousers exhibiting the body above the navel, and the minor son, aged 14, was caused to touch her breast and other parts of the body to draw a picture on it. Prima facie, it is a sexually explicit act involving a child. Her posture, gestures, etc., indicates her sexual intention and gratification.
Adding further, Neema said that the video in question, which exposes the bare chest, including the breast of the petitioner, is against the public notions of morality and would have a morally corruptive effect on the minds of people who watch it. It was further submitted that the constitutional protection for speech and expression is not absolute and is subject to reasonable restrictions based on considerations of ‘public order’, ‘defamation’, ‘decency and morality’, among other grounds.
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Kerala High Court
At the outset, according to the court, no one could reasonably infer that her kids were used for actual or simulated sexual acts or sexual enjoyment.
Justice Kauser Edappagath also said that autonomous decisions on one’s body comes under fundamental right to equality and privacy.
The Judge further remarked that painting on the naked upper body of a person, whether man or a woman, cannot be considered a sexually explicit act. The High Court said,
The petitioner has only allowed her children to use her body as a canvas.
It was not possible to infer any sexual intent behind the act. Autonomous decisions on one’s body comes under fundamental right to equality and privacy. He added that it will fall under personal liberty guaranteed by Article 21 of the Constitution.
The order said that every person, irrespective of gender, has autonomy over their body. It added,
It is wrong to classify nudity as essentially obscene, indecent or immoral.
The court concluded that punishing Rehana would be a torture for the children who are loved and cared by their mother.
Another Controversy Related to Rehana Fathima
Rehana Fathima had triggered a major debate with her attempt to enter Sabarimala temple following a Supreme Court verdict allowing women of menstruating age at the Lord Ayyappa temple. She had also broken traditions by participating at Pulikali in Thrissur.
Voice For Men India Question
Will courts quash such POCSO cases against fathers who allow their minor kids, particularly minor daughters to paint on their bodies using them as a canvas?
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READ ORDER: Kerala HC Quashes POCSO Case Against #RehanaFathima For Allowing Minor Children To Paint Her Semi-Nude Body
— Voice For Men India (@voiceformenind) June 6, 2023
▪️HC: "Mother only allowed kids to use her body as canvas. Not possible to infer any sexual intent behind act"@KanoongoPriyankhttps://t.co/FNZGdlZqhw
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