Sunday, January 29, 2023

Kerala activist woman fails to convince HC of purpose of nude picture, denied bail

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The High Court of Kerala on Friday denied anticipatory bail to activist Rehana Fathima who contended that she published the video showing her children draw paintings on her naked body to impart sex education.

Justice P. V. Kunhikrishnan noted that while the petitioner feels that she should teach sex education to her children by asking her children to paint on her naked body and then uploading the same in social media, the Court was not in a position to agree with the petitioner that she should teach sex education to her children in this manner.

The Court was of the prima facie opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video in an indecent and obscene manner because they are painting on a naked body of their mother. The expression of the petitioner, while the children are painting on her breast, is also important.

According to the Court, if this painting on the naked body of the petitioner happened inside the four walls of the house of the petitioner, there cannot be any offence. The talent of the children should be encouraged but not in the way the petitioner encouraged them by uploading the Video.

The Bench also stated that after seeing the video, it cannot be said that there was no obscenity involved and the contention that it was done to impart sex education can also not be accepted. The offence under Section 67B of IT Act, which relates to facilitating abusing of children online cannot be ruled out. The custodial interrogation of the petitioner was therefore required to ascertain if the use of children in the video was for “sexual gratification.

The High Court while dismissing the bail application observed that “the concept of mother in our society is always great. The role of mother is always important in the life of a child. The mother will be a pillar of emotional support to the child. As a mother, it is her duty and responsibility to be the emotional anchor of their children so that they can face the storms of life. The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings. You are also responsible for living your life according to the same moral values that you preach, as that is the only way kids will learn. The petitioner has got the freedom to teach her child according to her philosophy. But, that should be within the four walls of her house and should not be forbidden by law. A good mother has outstanding qualities. No one can replace her in life to her children. Deep love for her children, sacrifice and dedication, protection and security etc.. are the qualities of a mother. When a baby is born, he is totally unaware of the outside world. The mother plays an important part in introducing him to the world. The outlook that the child will form towards life depends a lot on the mother. His attitude, his views – religious or otherwise – his perspective on life and its goals will all be gained from her. Eventually, he will mature and perhaps form his own changed views. But in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”

Activist Rehana Fathima had moved the Kerala High Court seeking anticipatory bail, apprehending arrest with respect to cases filed against her for allegedly circulating a video of her posing semi-nude. The application was moved a day after a search was carried out at her residence by the police and her mobile phone and laptop were seized in connection with the video.

The video was posted on her facebook account using the hashtag #BodyArt and Politics, in which she was seen posing semi-nude for her minor children, allowing them to paint on her body.

“No child who has seen his own mother’s nakedness and body can abuse the female body.” the post read

The activist, in her bail plea while stating that she has been an activist who has been fighting a battle against body discrimination, also urged that as far as the discussion on body and body parts are concerned, there needs to openness.

According to the activist, the allegations against her would prima facie not constitute any offence punishable which are non-bailable in nature.

The petitioner also stated that, children need to be imparted sex education and made aware of the body and its parts as well enabling them to view it as a different medium altogether rather than seeing it as a sexual tool alone. Instituting a crime and prosecuting a person for the offence cannot be done because of allegation of the prosecution and public outcry on the issue.

A case was registered by Kochi city police under both POCSO Act and IT Act after a report was filed by the cyber wing of Kerala police, against her for posting the video.

A complaint was also lodged by BJP  OBC Morcha leader A V Arun Prakash, after which the Pathanamthitta district police had booked her under the Information Technology Act and the Juvenile Justice Act

However, the Kerala State Commission for Protection of Child Rights asked the police to register a case against her. The commission asked for a report on the matter from the district police chief in 10 days, and directed them to register a case against her under various sections of the Protection of Children from Sexual Offences (POCSO) Act. When the police had reached her house, she was not there and then later she filed an anticipatory bail plea in the High Court.


India Legal Bureau

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