Quashing a case against a women’s rights activist for offences punishable under various provisions of the Protection of Children from Sexual Offences (POCSO) Act, the Kerala High Court observed that the depiction of a woman’s body should not be always regarded as sexual or obscene.

Taking note of the petitioner’s explanation that the video was made to challenge patriarchal notions and to spread a message against the over-sexualisation of the female body, a single bench of Justice Kauser Edappagath said that nudity should not be automatically assumed as sexual but must be considered in the appropriate context.

“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. The same can be determined to be so only in context,” the court said.

The single judge bench pointed out that nude female sculptures in temples and other public spaces are considered art or even holy.

The allegation against women’s rights activist Rehna Fathima was that she had asked her two minor children, a boy and a girl of the ages 14 and 8 years, respectively, to paint on her semi-nude body, the video of which was thereafter circulated through social media platforms. She had contended that the act was meant to impart sex education to her children and rid the stigma about nudity.

A case was subsequently registered against Rehna Fathima under Sections 13, 14, and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

In its order, the court also made certain notable observations regarding the double standards prevailing in the society regarding male and female bodies.

“Body painting on men is an accepted tradition during ‘Pulikali’ festivals in Thrissur, Kerala. When ‘Theyyam’ and other rituals are performed at the temple, painting is conducted on the bodies of male artists. The male body is displayed in the form of six-pack abs, biceps etc. We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent,” the court observed.

The court also referred to the agitation by women in Kerala against the discriminatory breast tax or mulakkaram in British ruled India which involved a woman named Nangeli cutting off her breasts in protest.

The court watched the video in open court and noted that the same was not an act of sexual gratification with any sexual intent but was a video with a message against objectification of female bodies.

“The anatomy of the male body is seldom questioned, while the body agency and anatomy of women is 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 court said.

The court said that the petitioner had given a detailed message below her video, where she argued that the naked body was in response to a controlling, sexually frustrated society. According to the description under the video, no child who has grown up seeing his mother’s nakedness and body, can abuse another female body.

Hence, the video in question cannot neither 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 any sexual intent, the court said while quashing the case.