Nudity Of Female Upper Body Shouldn't Be Regarded As Sexual Or Obscene By Default : Kerala High Court

The depiction of a woman's naked body should not be regarded as sexual or obscene always, observed the Kerala High Court while discharging a mother from a criminal case pertaining to making a video of her children painting on her semi-nude body. 

Taking note of the woman's explanation that the video was made to challenge patriarchal notions and to spread a message against the over-sexualization of the female body, the High Court observed that the video cannot be regarded as obscene. She was chargesheeted for offences under under Sections 13, 14, and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).

Justice Kauser Edappagath, while granting relief to the woman, invoked the principles of body autonomy. The judgment also made certain notable observations regarding the double standards prevailing in the society regarding male and female bodies.

"The autonomy of the male body is seldom questioned, while the body agency and autonomy of women are under constant threat in a patriarchal structure. The women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives".

Nothing sexual in the act

The Court in this case was of the firm opinion that there was nothing wrong in a mother allowing her body to be used as a canvas by her children to paint in order to sensitize them to the concept of viewing nude bodies as normal. 

"Painting on the upper body of a mother by her own children as an art project cannot be characterized 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. To term this innocent artistic expression to be ‘usage of a child in real or simulated sexual act’ is harsh. There is nothing to show that the children were used for pornography. There is no hint of sexuality in the video. In the accompanying message, the petitioner has declared the purpose of the video as to make a political point against the default sexualisation of women’s body". 

Mere depiction of female nudity not obscene or sexual

The Court observed :

"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".

As regards the present case, the Court noted that the context was the political and artistic expression of the petitioner. The judgment, referring to Supreme Court's precedents in Ranjit D. Udeshi, Avareek Sarkar, stated that nudity should not be tied to sex.

"It is wrong to classify nudity as essentially obscene or even indecent or immoral. This is a State where women of certain lower castes had once fought for the right to cover their breasts. We have murals, statues, and art of deities displayed in the semi-nude in ancient temples run all over the country. 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"

Intention of the video was to expose double standards in society

The Court also came down heavily upon the 'double standard' prevailing in society in the way it regards nudity in men and women, and discerned that the intention of the petitioner in making and uploading the video was to expose the same.  

Body painting on men is an accepted tradition during 'Pulikali' festivals in Thrissur, Kerala. When 'Theyyam' and other rituals are performed at the temple, painting is conducted on the bodies of male artists. The male body is displayed in the form of six-pack abs, biceps etc. We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent. When the half-nude body of a man is conceived as normal and not sexualized, a female body is not treated in the same way. Some people are so used to considering a woman’s naked body as an overly sexualized one or just an object of desire. There is another dimensional view about female nudity- that is, female nudity is taboo because a naked female body is only meant for erotic purposes. The intention of the petitioner in making and uploading the video was to expose this double standard prevailing in society. 

Findings of the Court

The Court noted that main offences charged against the petitioner were under Sections 10 r/w 9(n), 14 r/w 13(b) and 15 of the POCSO Act. Of the same, the Court took note that Section 9(n) r/w 10 is attracted when a person, being a relative of the child, commits sexual assault on the child, and proceeded to observe that sexual intent is sine quo non for the applicability of Section 7 of the POCSO Act which defines 'Sexual Assault' and, consequently, for Section 9. 

The Court, on viewing the video, found that it depicted the petitioner's children painting on her body 'with utmost professional concentration'. It took note of the message given along with the video, as well as the long history of the activist petitioner in battling the patriarchy and hyper-sexualization of women in society, and opined that the contents of the video ought to be viewed in this background. It further noted that the petitioner's children also did not have a case that they were sexually exploited in any manner or that the petitioner was permitting body art on her body for any sexual motive.

"Every parent tries their best to teach their children all about life. Every parent has the right to raise their children in the manner they wish. Children do not inherently grow up thinking that any action is right or wrong unless it is impressed upon them as such," the Court observed while finding that there was no wrong in the petitioner allowing her body to be used as a canvas for her children. 

It was therefore of the view that the offence under Section 9(n) r/w 10 of the POCSO Act would not be attracted.

As regards the offence under Section 13(b) which is made punishable under Section 14, the Court noted that the same would be attracted only a person uses a child in any form of media for the purpose of sexual gratification, which it could not infer from the present case. 

"From the said allegation, it is not possible for anyone to infer or impute that the children were used for any real or simulated sexual acts, that too for sexual gratification. The petitioner only allowed her body to be used as a canvas for her children to paint on. The right of a woman to make autonomous decisions about her body is at the very core of her fundamental right to equality and privacy. It also falls within the realm of personal liberty guaranteed by Article 21 of the Constitution," the Court observed. 

As regards Section 15 which stipulates the punishment for the storage of pornographic material involving the child, the Court ascertained that the children in the video were not naked, and were only participating in a harmless and creative activity, and that there was nothing in the video that could be called pornographic, hence finding the charge not to stand. 

The Court further found that for the offences under the IT Act to be attracted, the act in question would have to be sexually explicit, obscene or indecent, which was not the case herein. 

"A video that was made to protest against the default sexualisation of the female naked upper body must necessarily show that naked body to convey the intention in making and uploading the video. Such a depiction of nudity cannot make the material legally obscene or indecent. 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.

That apart, the video must be appreciated in the background in which it was made and in the light of the message it wanted to convey, that is, there needs to be nothing sexual or offensive about the naked female body. When viewed from that angle, it cannot be said that the video is obscene or indecent merely because it depicts the naked upper female body of the petitioner. As rightly reasoned by the petitioner in the write up attached to the video, just as beauty is in the eyes of the beholder, so is obscenity".

The offence under Section 75 of the JJ Act was also not found to be attracted since there was no assault or abandonment of the child, as required under the provision. Additionally, the Court discerned that the the prosecution of the petitioner would have adverse effect on the children, and that the same could thus not be allowed to be continued in their best interests. 

"In conclusion, I have no hesitation in holding that the final report does not support or even draw a prima facie case for any of the statutory offences as alleged. The Court below completely overlooked the context in which the video was published and the message it had given to the public at large. There is no sufficient ground for proceeding against the petitioner," the Court held while setting aside the impugned order and discharging the petitioner. 

The petitioner had initially filed an application for discharge before the lower court on the ground that there was no sufficient ground to proceed against her, which was dismissed. It is against the same that the petitioner approached the High Court.

It was averred by the counsels on behalf of the petitioner that the video would have to be watched along with the message accompanying the same, which clarified that the petitioner intended to normalize the female body and to spread a message to not allow distorted ideas of sexualization in the minds of children, besides challenging the double standard prevailing in society regarding the default sexualization of the female body as opposed to the male body. Apart from there being no sufficient grounds to proceed against the petitioner, the counsels submitted that body art in the form of nudity is an expression protected under Article 19(1)(a), read with Article 21 of the Constitution.

The Senior Public Prosecutor T.V. Neema on the other hand, argued that the video depicted a sexually explicit act involving a child since the petitioner's minor son was caused to touch her breast and other parts of the body to draw a picture on it, and her posture and gestures also indicated her sexual intention and gratification. It was added that when the statute prohibited specific use of children in a certain manner, the same could not be violated under the shield of protest. 

The petitioner was represented by Advocates Renjith B. Marar, Lakshmi N. Kaimal, Arun Poomulli, Aiswarya Thankachan, and Meera Joppan. 

Case Title: XXX v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 252

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