Kerala High Court discharges POCSO case against women's rights activist Rehana Fathima

Nudity and obscenity are not always synonymous, observes Kerala HC

Kerala High Court Kerala High Court

The Kerala High Court on Monday discharged women's rights activist Rehana Fatima in a POCSO case observing nudity and obscenity are not always synonymous. Fatima was facing charges for circulating a video in which she was seen posing semi-nude for her minor children, allowing them to paint on her body.

Hearing the case, Justice Kauser Edappagath observed that video can not be regarded as obscene. Rehana Fathima was facing charges under various provisions of the POCSO, Juvenile Justice and the Information Technology (IT) Acts.

Justice Kauser Edappagath said that from the allegations against the 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. 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. In her appeal in the high court, she had 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 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.

"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 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.

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.

(With PTI inputs.)


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