Nudity Not Always Obscene: Kerala High Court While Quashing Case Against A Mother

While hearing a case of a mother, the Kerala High Court on Monday (June 5) ruled out that the depiction of a woman’s naked body should not always be seen as obscene or sexual. The bench comprising a single judge, Justice Dr Kauser Edappagath, quashed the case against women’s rights activist Rehana Fathima who was facing charges under the POCSO Act for a video in which she allowed her children to paint her semi-nude body.

Fathima was also facing charges under the Juvenile Justice and the Information Technology (IT) Acts for circulating the video. While discharging the 33-year-old woman, the court observed that it was ‘harsh’ to refer to an ‘innocent artistic expression’ as an act of using kids in a simulated or real sexual act.

‘Nuditiy Is Not Always Obscene’

Justice Edappagath said in a statement published by Live Law, “Nudity should not be tied to sex.” He observed that a sight or exposure of a woman’s upper body cannot be seen as “sexual by default”. He also added that if there is a depiction of the naked woman’s body, one cannot label it indecent, obscene, or sexually explicit.

He said that one must not see criminality and morality as coextensive terms. He added that many things are considered morally wrong in our society like consensual same-sex relationships, adultery, and live-in relationships. However, these are not crimes or legally wrong actions.

The judge also noted that painting a man or woman’s naked upper body cannot be seen as a sexually explicit act.

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Double Standard Of Society

Fathima published the video ‘Body and Politics’ to make a political statement. She contended in her appeal that a woman’s upper body is sexualised, while it does not stand true in a man’s case.

We have noted it in our society as well as in films. Actors like Shah Rukh Khan, Salman Khan, Shahid Kapoor, Ranveer Singh and others would shoot shirtless scenes and be hailed for their six-packs. However, if Deepika Padukone wears a saffron bikini or Sara Ali Khan posts an image in a bikini beside a pool, they are labelled as morally corrupt women. We are accustomed to seeing men’s nipples but always sexualise a woman’s curves, breasts, and nipples.

The Kerala HC also agreed with Fathima’s argument for posting the video. It said that the video exposed the double standards of our society.

While quashing the case against the activist, the court also said that it did not find any evidence to prove that children were involved in the making of an adult film. “There is no hint of sexuality in the video,” the judge noted.

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Bodily Autonomy Of Women

The ruling in this case also highlighted that Indian women lack the right to bodily autonomy. However, the court said that every citizen of the country, irrespective of their gender, is entitled to bodily autonomy.

It noted that women are discriminated against, prosecuted, and banned from communities for making decisions about their lives and bodies.

The case was filed by Cyberdom. It is Kerala police’s cyber wing that deals with complaints related to the POCSO and IT Act. Stay tuned to HerZindagi for more updates.