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KERALA HIGH COURT
Dr. Kauser Edappagath, J.
XXX – Petitioner
versus
State of Kerala represented by Public Prosecutor – Respondent
Crl.Rev.Pet.No.433 of 2022
Decided on 5.6.2023
(A) Protection of Children from Sexual Offences Act, 2012 – Sections 10 r/w 9(n), 14 r/w 13(b) and 15 – Information Technology Act, 2000 – Section 67B (a),(b),(c) – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 75 – Criminal Procedure Code, 1973 – Section 227 – Obscene and vulgar act – Posting on Social Media – Dismissal of application for discharge from criminal case – Sexual intent is sine qua non for applicability of Sections 7 and 9 of POCSO Act – Two-minute video shows petitioner’s son carefully, with utmost professional concentration, painting image of a phoenix in upper part of her body, starting from between breasts and flowers around both nipples – A little girl is also seen in video painting on paper – Petitioner admits this act – Petitioner has given a detailed message below her video, where she argues that naked body is response to a controlling, sexually frustrated society – Petitioner claims that she is an activist and has been fighting against body discrimination – Petitioner has a long history of battling patriarchy and hyper-sexualisation of women in society – Every parent tries their best to teach their children all about life – Every parent has right to raise their children in the manner they wish – 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 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 – Basic ingredients of offence under Section 9(n) r/w 10 of POCSO Act are not attracted – Offence under Section 15 also would not lie. (Paras 7, 8, 9, 10 and 14)
(B) Information Technology Act, 2000 – Section 67B (a),(b),(c) – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 75 – Criminal Procedure Code, 1973 – Section 227 – Obscene and vulgar act – Posting on Social Media – Dismissal of application for discharge from criminal case – Nudity should not be tied to sex – Mere sight of naked upper body of woman should not be deemed to be sexual by default – Depiction of naked body of a woman cannot per se be termed to be obscene, indecent, or sexually explicit – Notions of social morality are inherently subjective – Morality and criminality are not co-extensive – What is considered as morally wrong is not necessarily legally wrong – Society’s morality and some people’s sentiments cannot be reason for instituting a crime and prosecuting a person – An action is permissible if it does not violate any of laws of land – Statement of children shows that they are in loving care of petitioner – There is no assault or abandonment of child – Offence under Section 75 of JJ Act also is not attracted – There is no sufficient ground for proceeding against petitioner – Impugned order set aside and petitioner discharged. (Paras 17, 18, 20, 22 and 23)
Result: Criminal Original Petition allowed.
ORDER
Dr. Kauser Edappagath, J.—When you look into your mother’s eyes, you know that is the purest love you can find on this Earth.” — Mitch Albom.
‘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 body is the most fundamental space over which an individual shall have autonomy. Body autonomy that allows individuals the freedom to make their own choice about their bodies is a natural right and part of their liberty. Every individual is entitled to the autonomy of his/her body – this is not selective on gender. But we often find this right is diluted or denied to the fairer sex. 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. 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’.
2. The petitioner, a 33-year-old women’s rights activist who made her mark in Kerala through her progressive stances, posted a video on her social media platforms showing her two minor children, a boy (aged 14) and a girl (aged 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, has 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 police registered a case against her, allegedly succumbing to the public outcry. After investigation, the final report was filed at the Additional Sessions Court (For the trial of cases relating to Atrocities and Sexual Violence against Women and Children), Ernakulam (for short ‘the Court below’) for the offences punishable under Sections 10 r/w 9(n), 14 r/w 13(b) and 15 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”), Section 67B (a),(b),(c) of the Information Technology Act, 2000 (for short “IT Act”), and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short “JJ Act”).
3. The petitioner appeared at the Court below. She was released on bail. She filed an application for discharge under Section 227 of Cr.P.C. on the ground that there was no sufficient ground to proceed against her. The Court below, upon consideration of the records of the case and after hearing the submission of the petitioner and the prosecution, formed the opinion that there were grounds for presuming that the petitioner had committed the offence and, accordingly, dismissed the application as per the order dated 31/05/2022. The said order is under challenge in this revision petition.
4. I have heard Sri. Renjith B. Marar, the learned counsel for the petitioner and Smt. T.V. Neema, the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner Sri. Renjith B. Marar, submitted that a close reading of the FIR, FIS, statement of the witnesses, and the documents on record would reveal that none of the offences alleged again
(1) Sexual intent is sine qua non for applicability of Sections 7 and 9 of POCSO Act.(2) There is nothing wrong with a mother allowing her body to be used as a canvas by her children to paint to sens....
Point of law : Section 67 B of the IT Act was introduced with the object of prohibiting, publishing or transmitting material in electronic form depicting children in an obscene or indecent, or sexual....
Nudity alone does not constitute obscenity; artistic merit and contemporary community standards must be considered in determining obscenity under the Customs Act.
The court affirmed that actions undermining a woman's modesty, such as public defamation, are serious offences under the IPC, warranting legal action regardless of procedural technicalities.
Allegations of stalking and obscenity must meet legal thresholds of intent and evidence; mere accusations without substantiation are insufficient for prosecution.
(1) Vulgarity and profanities do not per se amount to obscenity.(2) All sex-oriented material and nudity per se are not always obscene – Obscenity must be judged with regard to contemporary mores and....
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