केरल उच्च न्यायालय (Kerala High Court) ने रेहाना फातिमा के खिलाफ आपराधिक मामले को खारिज (discharged) कर दिया, जिसमें माना गया कि अपने बच्चों द्वारा मां के शरीर पर चित्रकारी (body art) करने को पॉक्सो अधिनियम (POCSO Act) के तहत अश्लील या यौन कृत्य नहीं माना जा सकता तथा शारीरिक स्वायत्तता (body autonomy) की रक्षा की जानी चाहिए।
On June 05, 2023, the Kerala High Court discharged a criminal suit against a woman, Rehana Fathima, who was facing multiple charges for uploading a video in 2020 of her young daughter and son painting on her upper body. She was charged with offences under Sections 13, 14, and 15 of the POCSO Act, 2012, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, and Section 67B (d) of the Information Technology Act, 2000. While granting relief to the woman, Justice Kauser Edappagath invoked the principles of body autonomy. The bench said, “The autonomy of the male body is seldom questioned, while the body agency and autonomy of women are under constant threat in a patriarchal structure. The women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives.”
The Kerala HC mentioned that there was no issue with a mother who allow her children to use her body as a canvas to paint. It added, “Painting on the upper body of a mother by her own children as an art project cannot be characterized 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. To term this innocent artistic expression to be usage of a child in real or simulated sexual act is harsh. There is nothing to show that the children were used for pornography. There is no hint of sexuality in the video. In the accompanying message, the petitioner has declared the purpose of the video as to make a political point against the default sexualization of women’s body.” The High Court further observed that the mere sight of a naked female upper body should not be termed to be obscene, indecent, or sexually explicit.
During the proceedings, the Kerala HC opined that “It is wrong to classify nudity as essentially obscene or even indecent or immoral. This is a State where women of certain lower castes had once fought for the right to cover their breasts. We have murals, statues, and art of deities displayed in the semi-nude in ancient temples run all over the country. Such nude sculptures and paintings freely available in public spaces are considered art, even holy. Even though the idols of all Goddesses are bare-chested, when one prays at the temple, the feeling is not of sexual explicitness but of divinity.” Along with this, the ‘double standard’ of the society was also addressed by the Court in association with the way nudity in men and women differs. A single bench observed that the same was to be exposed through the video uploaded as ‘Body Art and Politics’.
The Kerala High Court while setting aside the impugned order said, “In conclusion, I have no hesitation in holding that the final report does not support or even draw a prima facie case for any of the statutory offences as alleged. The Court below 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.”