Mother Discharged in Criminal Case for Posing Half-Naked with Children, HC Rules Nudity and Obscenity not same [Read Order]

NEW DELHI: The Kerala High Court has said 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, it added, while quashing a criminal case under POCSO Act, IPC and IT Act against a woman activist for posing with her children painting her half-naked body.

A single judge bench of Dr Kauser Edappagath allowed the plea of the woman against her prosecution and discharged her, as the criminal case would have adverse effect on the children who are in her loving care.

"The video uploaded by the petitioner was neither obscene nor indecent. The petitioner was only propagating her views on the default sexualisation of the female naked body. It is trite that the freedom of speech and expression includes freedom of propagation of ones thoughts, ideas, opinions, and views. The State cannot, by any legislative or executive action, interfere with the said right except insofar as permissible under Article 19 (2). An expression of an opinion, with no overtones of obscenity or vulgarity, should not be a cause of action for criminal action," the court said.

The bench also said there is nothing to show that the children were used for pornography. "There is no hint of sexuality in the video. Painting on the naked upper body of a person, whether a man or a woman, cannot be stated to be a sexually explicit act," the court said.

The bench also said adultery, consensual same-sex relations and live-in relationships can continue to be scrutinised on a moral ground by certain people as much as one wants, but they are legal because law and morality are not equivalent to each other.

"Societys morality and some peoples sentiments cannot be the reason for instituting a crime and prosecuting a person. An action is permissible if it does not violate any of the laws of the land," it said.

"The notions of social morality are inherently subjective. Morality and criminality are not coextensive. What is considered as morally wrong is not necessarily legally wrong," it added.

The court rejected the prosecution's contention that the naked upper body of the petitioner was exposed in the video, and hence it is obscene and indecent, saying nudity and obscenity are not always synonymous and it is wrong to classify nudity as essentially obscene or even indecent or immoral.

"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," the bench said.

The court also said 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 bench said.

The court also rued that the right of autonomy over one's body is often denied to women and they are bullied, discriminated against, isolated and persecuted for making choices about their bodies and lives.

"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," it said.

[Read Order]