Mother Publishing Video Of Children Painting On Her Nude Body : Kerala HC Prima Facie Says Its Use Of Child For Sexual Gratification [Read Order]

Rejecting the argument of controversial Kerala activist Rehana Fathima that she published the video showing her children draw paintings on her naked body with the aim of imparting sex education, the High Court of Kerala on Friday dismissed her application seeking anticipatory bail.

The Court observed that while she was free to give sex education to her children - a boy aged 14 years and a girl aged 8 years - in the manner she wished within the four walls of her house, by publicising the video showing children doing the painting on her naked body, she has, prima facie, attracted the offences relating to obscene representation of children.

"The petitioner feels that she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner", observed Justice PV Kunhikrishnan in the order.

Fathima's video had caused widespread outrage, leading to registration of FIRs against her alleging obscene representation of children.

She was booked for offences 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.

Children should grow up seeing natural woman bodies : Rehna Fathima's argument

Seeking pre-arrest bail, Rehna Fathima contended that her acts were intended to enable her children to view body and body parts "as a different medium altogether rather than seen it as a sexual tool alone". She said that she had launched a campaign called "Body Politics and Art" to bring more open discussion on body and sexuality and that the criminal case against her was a result of the moralistic public outcry of the society.

She stated that if children grow up seeing natural woman bodies, their minds will be liberated of hyper-sexualization of women.

"No child who has grown up seeing his mother's nakedness and body can abuse another female body. Therefore, vaccines against these false preceptions and expectation about women's body and sexuality should be initiated from home itself", she said in a note submitted before the Court.

Stating that the seeds of division between men and women are sown in the minds of kids at a young age itself, she submitted :

"In a sexually Frustrated society, women simply do not feel safe in clothes. It is high time that you need to be open-up and open-about what the female body is all about and what Sex & Sexuality really means".

Prima facie case of use of child for sexual gratification: Court

At the outset, the Court said that it was forced to decide if a prima facie case was made out against the petitioner, as her counsel argued that even if the allegations are admitted, no offences were attracted.

The Court noted that Section 13(c) of the POCSO treated "indecent or obscene representation of a child" for the purpose of "sexual gratification" as an offence of using "child for pornographic purposes". 

The Court expressed the prima facie view that the use of the children by the petitioner was for the purposes of "sexual gratification".

"Prima facie, I am of the opinion that the petitioner uses the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they are painting on a naked body of their mother"

After watching the video in question, the Court observed that "the expression of the petitioner, while the children are painting on her breast, is also important".

The Court said that custodial interrogation of the petitioner was required to ascertain if the use of children in the video was for "sexual gratification".

Further, the Court said that it cannot rule out the offence under Section 67B of IT Act, which relates to facilitating abusing of children online. 

The Court reiterated that it cannot agree with the contention of the petitioner that she was imparting sex education.

"..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. After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video. The petitioner, when shot and uploaded these videos in social media, she also claims that she wants to teach sex education to the children in the society. I cannot accept this stand of the petitioner".

Justice Kunhikrishnan further said that after seeing the video, he cannot say that there is no obscenity involved :

"I place myself in the position of the petitioner and from the view point of the viewers of every age group in whose hands this video is reached by uploading the same by the petitioner. After applying my judicial mind, I am not in a position to say that, there is no obscenity in the video when it is uploaded in the social media".

The Court clarified that its observations are prima facie in nature, only for the purposes of consideration of the bail application, and that they should not have any bearing on the investigation and further proceedings.

The Court also made observations regarding the important role played by mothers in shaping the morality and personality of her child, referring to quotes from the 'Manusmriti" and "Holy Quran".

"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", the Court said.

In 2018, Rehana Fathima was booked for outraging religious sentiments (Section 295A IPC) over her pictures in Facebook in the customary attire of Ayyappa devotees, uploaded in the wake of the Sabarimala verdict of Supreme Court.

The High Court of Kerala had then denied her bail, observing that her photographs were not in "good taste" and "cannot be appreciated from the point of view of an ordinary prudent believer" and had the "propensity to hurt religious feelings".

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