“Nudity should not be tied to sex."
Kerala High Court has dismissed the case against activist Rehana Fathima, stating that the depiction of a woman’s naked body cannot be termed as obscene, indecent or sexually explicit.
In 2020, Rehana caused controversy by posting a video on social media, showing her minor son and daughter painting her topless body to spread a political message.
A criminal case was registered against her, accusing her of promoting obscenity.
On June 5, 2023, the case was thrown out, with the High Court stating that nudity and obscenity are not the same thing.
Justice Kauser Edappagath observed: “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 context here shows that the said depiction is one of political expression of the petitioner and artistic expression of the children.
“There is absolutely no reason to believe that an ordinary man viewing the video would become depraved, debased and encouraged to lasciviousness.
“In the strict sense, the petitioner did not show her bare chest, as the body paint covered her breast. It can never arouse any sexually explicit feeling in the mind of a prudent man.”
Rehana Fathima, who fought the case, revealed what she had to endure during the process.
She said: “My children were (confused) that they just made a painting on their mother’s bodies and she had to go to jail for that.
“They were very disturbed because I was sent to 15-day jail.
“The society thought that I used my children for my satisfaction but it was not like that. We need to change the stereotype.”
Rehana had been facing charges under various sections of the Protection of Children from Sexual Offences (POCSO), Juvenile Justice and the Information Technology (IT) Acts.
She continued: “I told people I want my children to learn from their mother’s body and treat all bodies with respect.
“I don’t want them to see a woman’s body as goods, just (meant) for sexual satisfaction.”
Rehana added that her children are “very happy with the court verdict”.
The court observed that Rehana only allowed her body to be used as a canvas for her children to paint on, therefore, it cannot be characterised as a real or simulated sexual act, nor could it be said that the same was done for the purpose of sexual gratification or with sexual intent.
In her appeal to the high court, Rehana Fathima said the body painting was meant as a political statement against society’s view that the naked upper body of the female is sexualised in all contexts, whereas the naked male upper body is not treated similarly.
Agreeing with her appeal, the court 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”.
The court added:
“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 court also pointed out that the final report does not support or even draw a prima facie case for any of the statutory alleged offences.
The children are exposed to prosecution against their own mother, contrary to their wishes.
Kerala High Court added that in the best interest of the victims, the prosecution cannot be allowed to be continued.
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