Kerala HC : "Nudity is not always associated with obscenity"

Rehana Fathima, a woman's rights activist accused of letting her kids to paint her semi-naked body, is the subject of the case.
The Kerala High Court ruled on Monday that Rehana Fathima's act cannot be characterised as a real or simulated sexual act. (Pixabay)
The Kerala High Court ruled on Monday that Rehana Fathima's act cannot be characterised as a real or simulated sexual act. (Pixabay)

Rehana Fathima was facing charges under the POCSO (Protection of Children from Sexual Offences Act) case for allowing her children to paint her semi-naked body.

The Kerala High Court ruled on Monday that Rehana Fathima's act cannot be characterised as a real or simulated sexual act and that society's default view that the naked upper body of a female is sexualized in all contexts is unfair and discriminatory.

"A woman's fundamental right to equality and privacy is centred on her autonomy in making decisions about her body. According to the court, it also falls under the umbrella of personal freedom protected by Article 21 of the Constitution.

The Kerala High Court ruled on Monday that Rehana Fathima's act cannot be characterised as a real or simulated sexual act. (Pixabay)
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According to the POCSO, Juvenile Justice, and Information Technology (IT) Acts, Fathima was accused in the case for disseminating a video in which her young children could be seen painting on her semi-naked body. The 33-year-old activist was released from the case by Justice Kauser Edappagath on the grounds that it was "harsh" to characterize such a "innocent artistic expression" as the use of a kid in a real or simulated sexual act and that it did not constitute child pornography.

After a trial court denied Fathima's request to have the continuing lawsuit dismissed, the High Court made its decision. In her appeal, Fathima argued that the act was intended to make a political statement because women's upper bodies are always sexualized but men's upper bodies are not. The court accepted her argument and stated that Fathima's goal in distributing the video was to "expose this double standard prevailing in society."

The Kerala High Court ruled on Monday that Rehana Fathima's act cannot be characterised as a real or simulated sexual act. (Pixabay)
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Court's decision

Due to Fathima's exposure of her upper body in the video, the prosecution referred to the act as "obscene" and "indecent" and argued that it violated moral standards held by the general public. The court, however, disagreed, stating that "nudity and obscenity are not always synonymous." It said, "It is erroneous to categorize nudity as fundamentally vulgar, let alone indecent or immoral.

It cannot be claimed that the act was carried out with "sexual gratification or with sexual intent," according to Justice Edappagath. "There is no evidence to suggest that the kids were utilized in porn. The video contains no indication of sexuality. Painting a person's upper torso, whether they are a man or a woman, cannot be characterized as a sexual act, the court ruled.

"Nudity and obscenity are not always synonymous." (Pixabay)
"Nudity and obscenity are not always synonymous." (Pixabay)

Disparate treatment

The court stated that everyone has the right to the autonomy of their body, regardless of gender, but that women frequently lack this right. "Women face harassment, discrimination, isolation, and legal action as a result of their decisions over their bodies and lives...But sex and nudity shouldn't be related, it said.

The court also took note of the petitioner's children's declarations that their mother loves and takes care of them, and that Fathima's prosecution will have a negative impact on them.

(AS/Newsgram)

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