Thiruvanantapuram, June 06, 2023: A long legal battle that started in 2020 over a viral video has finally brought some relief for Rehana Fathima as the Kerala High Court ruled in favour of the state-based activist and said the right of autonomy over one’s body is often denied to the fairer sex and they are bullied, discriminated against, isolated, and persecuted for making choices about their bodies and lives. The court on Monday discharged her in a POCSO case.
After the big win in the court, the woman sent out a message for society and said, “Only a woman has the right to her body. Don’t feel ashamed of it. Respect your body."
Speaking to NDTV, Fathima said, “My children were (confused) that they just made a painting on their mother’s bodies and she had to go to jail for that. They were very disturbed because I was sent to 15-day jail. The society thought that I used my children for my satisfaction but it was not like that. We need to change the stereotype."
Who is Rehana Fathima?
* Thirty-three-year-old Fathima was born into an orthodox Muslim family.
* In 2020, she faced charges under various provisions of the Protection of Children from Sexual Offences (POCSO) Act, Juvenile Justice, and the Information Technology (IT) Acts for circulating a video in which she was seen posing semi-nude for her minor children, allowing them to paint on her body.
* As the video went viral, she was arrested and her bail pleas were repeatedly rejected.
* The case was registered by Kochi city police against her for posting the video titled “Body and Politics" on social media.
* Earlier, Fathima was also booked by police in Pathanamthitta district under the Information Technology Act and the Juvenile Justice Act on a complaint lodged by BJP OBC Morcha leader AV Arun Prakash.
* The Kerala State Commission for Protection of Child Rights had also sought a report on the matter from Pathanamthitta district police chief and had also directed the police to register a case against her under various sections of the POCSO Act.
* However, this was not the first time when Fathima grabbed the headlines. She had earlier attempted to enter the Lord Ayyappa shrine in Sabarimala after the Supreme Court allowed women of menstruating age to do so, and was targeted by certain groups for it.
* Even in 2014, she took part in the controversial ‘Kiss of love’ protest in Kochi against moral policing along with her partner Manoj K Sreedhar.
What Kerala HC Says
Discharging Fathima from the case, Justice Kauser Edappagath said that from the allegations against her, it was not possible for anyone to infer that her children were used for any real or simulated sexual acts and that too for sexual gratification. The court said that she only allowed her body to be used as a canvas for her children to paint on.
The order came on Fathima’s appeal against a trial court decision dismissing her plea to be discharged from the case. In her appeal in the high court, she had asserted that the body painting was meant as a political statement against the default view of society that the naked upper body of the female is sexualised in all contexts, whereas the naked male upper body is not treated to this default sexualisation.
Agreeing with her contentions, Justice Edappagath 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".
The judge said it was “harsh" to term such an “innocent artistic expression" as a usage of a child in a real or simulated sexual act. “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 prosecution had claimed that Fathima had exposed her upper body in the video and hence, it was obscene and indecent.
Rejecting the contention, the court said that “nudity and obscenity are not always synonymous". “It is wrong to classify nudity as essentially obscene or even indecent or immoral," it further said.
It further said that nude display of the upper body of men is never considered obscene or indecent and is not sexualised, but “a female body is not treated in the same way". “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 women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives," 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," Justice Edappagath said.
The court also noted that even from the statements given by Fathima’s children, they are loved and cared for by their mother.