Woman’s naked upper body not sexual by default: Kerala High Court

The 2020 case had been filed by the Kochi Police after the activist took to social media to share a video of two children painting on her semi-naked upper body

“There is nothing wrong with a mother allowing her body to be used as a canvas by her children to paint to sensitise them to the concept of viewing nude bodies as normal and thinking about them as more than just sexual objects only. Such an act cannot be termed to be one which is done with sexual intent,” read an order of the High Court of Kerala early this month. 

The court said that depiction of a woman’s naked body should not be regarded as sexual or obscene always.

The 2020 case had been filed by the Kochi Police after the activist took to social media to share a video of two children painting on her semi-naked upper body. The visuals had triggered outrage on the internet, following which the police had booked her under various sections of POCSO Act, IT Act and Juvenile Justice Act.

The Kerala High Court dismissed the case against the activist, and stated that “the intention of the petitioner in making and uploading the video was to expose this double standard prevailing in society.”

“Here is a case where a mother who tried to challenge patriarchal stereotypes and spread a message that there needs to be nothing sexual or offensive about the naked female body by letting her kids be exposed to her semi-nude body, was saddled with criminal prosecution alleging that she exploited her own children for sexual gratification. What started as a body art project for a mother with her kids with control of the narrative turned out to be a ‘criminal act”, the court observed.

According to the prosecution, the naked upper body of the petitioner was exposed in the video, and hence it was obscene and indecent. 

“Nudity and obscenity are not always synonymous. 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 seminude in ancient temples run all over the country,” the court said.

“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 said.

The petitioner

The petitioner a 33-year-old women’s rights activist had posted a video on her social media platforms showing her two minor children – boy, 14 and girl, 8 – painting on her semi-nude torso carrying the hashtag ‘Body Art and Politics’.

The video, uploaded on YouTube and shared through her personal Facebook account, triggered massive outrage, with several people slamming her for subjecting her children to what they considered to be an obscene and vulgar act and then posting the same for the world to see.

The petitioner, on her part, defended her actions as a form of self-expression and an attempt to break free from social and cultural taboos that constrain women’s bodies.

The petitioner claimed that she is an activist and has been fighting against body discrimination. She urged need for an openness in the discussion on body and body parts. She said body art was meant as a political statement against the default view of society that the naked upper body of the female is sexualized in all contexts, whereas the naked male upper body is not treated to this default sexualization.

The petitioner has a long history of battling the patriarchy and hyper-sexualization of women in society. She was part of the ‘Kiss of Love’ movement in 2014, along with her partner. This was a movement in Kochi, allegedly against moral policing.

In her autobiography, ‘Body, Struggle and Presence’, the petitioner challenges the patriarchy that controls women’s body and subjects it to scrutiny.

The High Court

During the hearing of the case before the High Court, counsel for petitioner Renjith B. Marar, said a close reading of the FIR, statement of the witnesses, and the documents on record would reveal that none of the offences alleged against the petitioner are made out. 

Counsel also said that the petitioner’s uploaded video could not be watched in isolation without understanding the message accompanying it, making it clear that the petitioner intended to normalize the female body and spread a message to not allow distorted ideas of sexualization in the minds of children. Marar said the video challenged double standard prevailing in society regarding the default sexualization of the female body as opposed to the male body. 

The Public Prosecutor

T.V. Neema, the Senior Public Prosecutor, however, argued that the petitioner is seen semi-nude in the video wearing half trousers exhibiting the body above the navel, and the minor son is made to touch breast and other parts of the body to draw a picture. 

“Prima facie, it is a sexually explicit act involving a child. Her posture, gestures, etc, indicates her sexual intention and gratification,” he said adding the content in the video is evidently obscene and pornographic material involving a child. 

“When statute prohibits specific use of children in a certain manner, it cannot be violated under the shield of protest,” the Senior Public Prosecutor said.

Judgment

The judge Justice Kauser Edappagath viewed the documentary in the court and observed that the two-minute video shows the petitioner’s son carefully, with utmost professional concentration, painting the image of a phoenix in the upper part of her body. A little girl is also seen in the video painting on paper.

“The crucial question is whether there was any sexual intent on the part of the petitioner in the said act. The petitioner has given a detailed message below her video, where she argues that the naked body is the response to a controlling, sexually frustrated society,” the judge said.

“Going by the message accompanying the uploaded video, body painting was done as an artistic form of protest against the sexualised portrayal of the naked upper body of a woman and to express her views on bodily autonomy and the emancipation of women,” he added. 

Statement of children

The children have also given the statement and according to court they “do 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.”

“The boy in his statement, stated that he found the art of body painting to be fascinating, and out of his childlike fascination, he requested his mother to paint on her body; she agreed to this request and let her torso be painted on. There is nothing on record to even remotely indicate that the petitioner did the said act with any sexual intent,” the court said.

 “There is no bond stronger and more sincere than the one between a mother and her child. The essence of motherhood is pure and serene love. The statement of the children shows that they are in loving care of the petitioner.” 

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