My Body My Choice, Says Kerala HC While Discharging Woman Activist Who Published Video Of Her Minor Son Painting On Her Naked Body

A Kerala High Court Bench of Justice Kauser Edappagath has discharged a woman from a criminal case pertaining to publishing a video showing her two minor children, a boy (aged 14) and a girl (aged 8) painting her semi-nude torso. The Court observed in its order that a half-nude body of a man is conceived as normal and not sexualised while a female body is not treated in the same way and that the petitioner was trying to expose this double standard. 

The Court viewed the video in the open Court, which showed the petitioner’s minor son painting the image of a phoenix in the upper part of her body, starting from between the breasts and flowers around both nipples. The minor girl is seen in the video painting on paper, as per the Court.

The Court noted that the petitioner has a long history of battling "patriarchy and hyper-sexualization of women in society" by participating in ‘Kiss of Love’ and attempting to enter the Sabarimala Temple while belonging to the age group restricted by custom. 

"‘My Body, My Choice’ – an iconic tagline coined by the prochoice movement in the early ’70s to represent bodily autonomy and gender equality – continues to be an expression of the rights women deserve and is still consistently utilised by women right’s activists across the globe as a powerful retaliation to sexist societal ideas and archaic patriarchy", the Court observed at the beginning of its order.

While allowing her revision petition, the Court observed that "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".

It was further observed that "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".

Counsel Renjith B Marar, among others, appeared for the accused. Public Prosecutor TV Neema appeared for the complainant.

In this case, the petitioner was charged under the POCSO Act, the Juvenile Justice Act and the Information Technology Act. She had posted a video on her social media showing her two minor children painting on her semi-nude torso, carrying the hashtag "Body Art and Politics". The video triggered massive outrage, with people slamming her for subjecting her children to what they considered obscene and vulgar acts and then posting the same for the world to see. 

The petitioner's discharge application had been denied, and subsequently, she challenged the order before the High Court.

The Court deemed that the crucial question was whether there was any sexual intent on the part of the petitioner.

On perusal of the relevant provisions of the law, and the video in question, the Court was of the considered view that from the core allegation that the petitioner made her two children paint on her naked upper body, videographed the same and then uploaded on to an internet video platform, 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. 

In furtherance of the same, the Court observed that "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".

In a similar vein, the Court said that painting on the upper body of a mother by her own children as an art project cannot be characterised 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. 

Since it was established that no sexually explicit act had taken place, the Court observed that the charges under the IT Act would not be attracted.

Agreeing with the petitioner's stance against the default sexualisation of a woman's body, the Court said that "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. Nudity should not be tied to sex. 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".

The Court held that charges under the JJ Act would not be attracted since there was no assault, abandonment, abuse, exposition or neglect of the children.

In light of the same, the Court held that there was no sufficient ground to proceed against the petitioner and discharged the petitioner by setting aside the impugned order.

Cause Title: XXX vs State of Kerala

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