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HomeIndia‘Nudity shouldn’t be tied to sex’: HC quashes POCSO case against mom...

‘Nudity shouldn’t be tied to sex’: HC quashes POCSO case against mom who let kids paint her naked torso

Case deals with viral video made by Kerala activist. Judge Kauser Edappagath said she meant to educate her children to treat nude bodies as more than ‘just sexual objects only’.

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New Delhi: Raising questions over patriarchal stereotypes regarding a woman’s nude body, the Kerala High Court Monday said that “nudity and obscenity are not always synonymous” as it discharged a women’s rights activist in a Protection of Children from Sexual Offences (POCSO) case involving her two kids.

Justice Kauser Edappagath in his 28-page order said: “It is wrong to classify nudity as essentially obscene or even indecent or immoral… While the autonomy of a male body is seldom questioned, the autonomy of women is under constant threat of patriarchal structure… Female nudity is seen as a taboo because a naked female body is only meant for erotic purposes.”

The HC order came on a revision petition filed by the 33-year-old women’s rights activist who challenged the May 2022 Ernakulam POCSO court order refusing to discharge her. The woman posted videos on her social media platforms in June 2020 which showed her two minor children — 14-year-old boy and 8-year-old girl — painting on her semi-nude torso. 

The video sparked “massive outrage”, leading to Ernakulam police registering an FIR against her for obscenity under a section of Indian Penal Code (IPC) and under various sections of POCSO Act, 2012, Information Technology Act, 2000, and Juvenile Justice (Care and Protection of Children) Act, 2015.

The activist had posted the “controversial” video with the hashtag “Body Art and Politics”.

The judge held that painting on the naked upper body of a person, whether a man or a woman, cannot be stated to be a sexually explicit act, particularly in the case at hand, since the message that accompanied the video clearly mentioned that body painting was done as an “artistic form of protest against sexualised portrayal of the naked upper body of a woman”.

The social activist’s video, the judge said, intended to expose this double standard prevailing in society and also educate her children to consider a nude body as “more than just a sexual object”.

“Here is a case where a mother who tried to challenge patriarchal stereotypes and spread a message that there needs to be nothing sexual or offensive about the naked female body by letting her kids be exposed to her semi-nude body was saddled with criminal prosecution alleging that she exploited her own children for sexual gratification. What started as a body art project for a mother with her kids with control of the narrative turned out to be a ‘criminal act’,” the judge noted.

The video, the judge concluded, was an “innocent artistic expression” of bodily autonomy and emancipation of women, which is at the very core of a woman’s fundamental right to equality, privacy, and personal liberty. 


Also Read: ‘Vulgar, obscene & profane’: Delhi HC pans makers of TVF show College Romance, upholds FIR


Offences under POCSO, IT and JJ Acts

The woman was booked under Sections 10 r/w 9(n), 14 r/w 13(b) and 15 of the POCSO Act.

The offence under Section 9(n) r/w 10 is attracted when a person, being a relative of the child, commits sexual assault on the child.

Sexual assault under POCSO is when a person touches the vagina, penis, anus, or breast of the child with sexual intent, or makes the child touch the vagina, penis, anus, or breast of that person or any other person with sexual intent and without penetration.

Section 14 r/w 13 (b) is applicable when a person uses a child in any form of media for the purpose of sexual gratification (with or without penetration). 

And, section 15 pertains to punishment for the storage of pornographic material involving the child.

Section 67B (a),(b),(c) of the IT Act under which the woman was booked, criminalises publishing or transmitting of material depicting children in sexually explicit acts.

The woman was also booked under section 75 of the JJ Act. The section is invoked when a person assaults, abandons, abuses, exposes or wilfully neglects a child in a manner that it is likely to cause the juvenile mental or physical suffering.

In August 2020, she surrendered following the Supreme Court’s refusal to give her anticipatory bail. However, the Ernakulam POCSO court granted her a regular bail nine days later.

Rejecting her anticipatory bail plea, the SC bench headed by Justice Arun Mishra — who now heads the National Human Rights Commission (NHRC) — took strong exception to the video. 

He had observed: “You might be an activist, but why do you do all these? What kind of nonsense is this? What impression will your kids get about the culture of the country?”

However, in his judgment Monday, Justice Edappagath spoke of murals, statues, semi-nude sculptures dotting ancient temples in the country and women of “certain lower castes” who once fought for the right to “cover their breasts”.

“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,” he said.


Also Read: Privacy, consent, data — what Delhi govt ignores when giving parents live classroom footage


‘Morally wrong is not necessarily legally wrong’

The judge dismissed the state’s contention that the video was, prima facie, a sexually explicit act, involving a child.

He said: “Every parent tries their best to teach their children all about life and every parent has the right to raise their children in the manner they wish.” 

The state further argued that the truthfulness or falsity of allegations are questions of fact and matters of evidence for which a trial should be held, which was also rejected by the court. The judge observed: “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 saw the two-minute video in the open court and noticed the message accompanying it, as well as the “utmost professional concentration” of her son, painting the image of a phoenix in the upper part of her body, starting between the breasts and flowers around both nipples. The girl was seen painting on papers.  

Through the video, the judge concluded, the woman was only propagating her views on the default sexualisation of the female naked body, which was an inherent part of freedom of free speech and expression under Article 19.

“An expression of an opinion, with no overtones of obscenity or vulgarity, should not be a cause of action for criminal action,” the HC concluded.

The woman, through her naked body, was making a point against “controlling, sexually frustrated society,”  said the judge.

The woman’s past work as an activist came in for appreciation by the court, as the latter acknowledged her “long history of battling the patriarchy and hyper-sexualisation of women in society,” including the “Kiss of Love” movement in 2014 against moral policing.

Before the court, the woman activist’s lawyer, Renjith B. Marar, assailed the POCSO sections mentioned in the FIR, contending the documents on record with the police chargesheet would reveal that none of the offences alleged against her are made out.

The judge accepted Marar’s submission, as he referred to the statement given by the woman’s children to the police. Both her kids denied being sexually exploited by their mother. Rather, the boy’s statement reflected his “fascination for body painting”. It was out of “his childlike fascination” that he requested his mother to paint on her body, which she agreed to, the HC said.

Since the court found “nothing on record to even remotely indicate that the petitioner” committed the alleged act with any “sexual intent” or used children for “pornography,” it ruled the offences under POCSO were not established.

Consequently, the charge under IT Act too was not attracted, the court concluded.

On the point of whether notions of social morality can be translated into a crime under the penal law, the court observed: “What is considered as morally wrong is not necessarily legally wrong.”

“The notions of social morality are inherently subjective. Morality and criminality are not coextensive,” it said, quoting two 2018 Supreme Court judgments — Joseph Shine, which decriminalised adultery and Navtej Singh Johar that legalised same-sex consensual relationships.

The two acts — adultery and homosexuality — are not crimes, even though the two relationships “can continue to be scrutinised on a moral ground by certain people as much as one wants,” noted the court.

“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 judge said.

(Edited by Anumeha Saxena)


Also Read: Decoding SC’s majority ruling on lawmakers’ freedom of speech — ‘govt can’t be held liable’


 

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