Women often denied autonomy over own body; nudity and obscenity are not always synonymous: Kerala HC

The judge said it was 'harsh' to term an 'innocent artistic expression' as a usage of a child in a real or simulated sexual act

The right of autonomy over one's body is often denied to the fairer sex and they are bullied, discriminated against, isolated and persecuted for making choices about their bodies and lives, the Kerala High Court said on Monday while discharging a women's rights activist in a POCSO case.

Rehana Fathima, a woman's rights activist, was facing charges under various provisions of the POCSO, Juvenile Justice and the Information Technology (IT) Acts for circulating a video in which she was seen posing semi-nude for her minor children, allowing them to paint on her body.

Discharging her from the case, Justice Kauser Edappagath said that from the allegations against the 33-year-old activist, it was not possible for anyone to infer that her children were used for any real or simulated sexual acts and that too for sexual gratification.

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The court said that she only allowed her body to be used as a canvas for her children to paint on.

"The right of a woman to make autonomous decisions about her body is at the very core of her fundamental right to equality and privacy. It also falls within the realm of personal liberty guaranteed by Article 21 of the Constitution," it said.

The order came on Fathima's appeal against a trial court decision dismissing her plea to be discharged from the case.

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In her appeal to the high court, she asserted that the body painting was meant as a political statement against the default view of society that the naked upper body of the female is sexualised in all contexts, whereas the naked male upper body is not treated to this default sexualisation.

Agreeing with her contentions, Justice Edappagath said that painting on the upper body of a mother by her own children as an art project "cannot be characterised as a real or simulated sexual act nor can it be said that the same was done for the purpose of sexual gratification or with sexual intent".

The judge said it was "harsh" to term such an "innocent artistic expression" as a usage of a child in a real or simulated sexual act.

"There is nothing to show that the children were used for pornography. There is no hint of sexuality in the video. Painting on the naked upper body of a person, whether a man or a woman, cannot be stated to be a sexually explicit act," the court said.

The prosecution had claimed that Fathima had exposed her upper body in the video and hence, it was obscene and indecent.

Rejecting the contention, the court said that "nudity and obscenity are not always synonymous".

"It is wrong to classify nudity as essentially obscene or even indecent or immoral," it further said.

The court pointed out that women of lower castes in Kerala had once fought for the right to cover their breasts and that there were murals, statues and art of deities in the semi-nude in ancient temples and various public spaces all over the country and these are considered as "holy".

It further said that nude display of the upper body of men is never considered obscene or indecent and is not sexualised, but "a female body is not treated in the same way".

"Every individual is entitled to the autonomy of his/her body – this is not selective on gender. But we often find this right is diluted or denied to the fairer sex. "The women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives," the court said.

The court further said that there were some who consider female nudity as taboo and only meant for erotic purposes and the intention behind the video circulated by Fathima was to "expose this double standard prevailing in society".

"Nudity should not be tied to sex. The mere sight of the naked upper body of the woman should not be deemed to be sexual by default. So also, the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent, or sexually explicit," Justice Edappagath said.

The prosecution had also contended that the video was against the public notions of morality and would have a morally corruptive effect on the minds of people who watch it. The court rejected this argument also by saying that notions of social morality are inherently subjective. "Morality and criminality are not coextensive. What is considered as morally wrong is not necessarily legally wrong," it said.

The court pointed out that adultery, consensual same-sex relations and live-in relationships are considered immoral by many, but they are legal acts.

"Society’s morality and some people’s sentiments cannot be the reason for instituting a crime and prosecuting a person. An action is permissible if it does not violate any of the laws of the land," it said.

The court also noted that even from the statements given by Fathima's children, they are loved and cared for by their mother.

"A mother–child relationship is one of the earth's most solemn and pious relationships. There is no bond stronger and more sincere than the one between a mother and her child. "No doubt, the prosecution of the petitioner (Fathima) will have torture and adverse effect on the children. Hence, in the best interest of the victims also, the prosecution cannot be allowed to be continued," it said.

Justice Edappagath said that the lower court completely overlooked the context in which the video was published and the message it had given to the public at large.

"There is no sufficient ground for proceeding against the petitioner. The impugned order is, accordingly, set aside and the petitioner is discharged," the high court said.

The case was registered by Kochi city police under various sections of the Protection of Children from Sexual Offences (POCSO) Act and IT Act based on a report filed by Cyberdom, the cyber wing of Kerala police, against her for posting the video titled "Body and Politics" on social media.

Earlier, the woman was also booked by police in Pathanamthitta district under the Information Technology Act and the Juvenile Justice Act on a complaint lodged by BJP OBC Morcha leader A V Arun Prakash.

The Kerala State Commission for Protection of Child Rights had also sought a report on the matter from the Pathanamthitta district police chief and had also directed the police to register a case against the woman under various sections of the POCSO Act.

Fathima had attempted to enter the Lord Ayyappa shrine in Sabarimala after the Supreme Court allowed women of menstruating age to do so and was targeted by certain groups for it.