Right of a woman to make autonomous decisions about her body is at very core of her fundamental right to equality and privacy, the court said.
Social activist Rehana Fathima has been targeted ever since she attempted to visit the Sabarimala temple in 2018. (Supplied)
The High Court of Kerala on Monday, June 5, quashed a case against activist Rehana Fathima for allowing her minor children to paint on her semi-nude body and posting the video on Facebook.
While dismissing the case, Justice Kauser Edappagath made a clear distinction between nudity and obscenity. The controversial 2020 incident had divided public opinion on moral grounds.
“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,” Justice Edappagath stated in the order.
While disposing of the case, the court noted that “nudity and obscenity are not always synonymous”. “It is wrong to classify nudity as essentially obscene or even indecent or immoral.”
In 2020, Fathima she allowed her children, a boy and a girl, to paint on her upper body. The video was shared on social media with a description in which she argued that the naked body was the response to a controlling, sexually-frustrated society.
Earlier, Fathima was booked in the Pathanamthitta district under Section 67 (electronically transmitting sexually explicit content) of the IT Act and Section 75 (punishment for cruelty to children) of the Juvenile Justice Act.
Rehana Fathima during her unsuccessful Sabarimala pilgrimage. Photo: Supplied.
Fathima was also slapped with sections under the Protection of Children Against Sexual Offences (POCSO) Act.
The cases were charged against Fathima based on a complaint by BJP OBC Morcha leader AV Arun Prakash.
The Kerala State Commission for Protection of Child Rights had also sought a report from the Pathanamthitta district police chief and directed the police to register a case against her under various sections of the POCSO Act.
After the police action, Rehana’s employer, BSNL, terminated her service.
The high court stated that there was nothing wrong with a mother allowing her body to be used as a canvas by her children. The court observed that it would sensitise children to the concept of viewing nude bodies as normal. It would also prevent them from considering nude bodies as mere sex objects.
“Such an act cannot be termed to be done with sexual intent. Therefore, the basic ingredients of the offence under Section 9(n) r/w 10 of the POCSO Act are not attracted,” the court said in its order.
A 2016 photo of Rehana Fathima taking part in ‘Pulikali’, a recreational folk tiger dance performed by men during the Onam festival in Thrissur. (Supplied)
“The presumption under Sections 29 and 30 cannot be drawn unless the foundational facts constituting the offence are established,” it added.
The judgement also said that painting on male bodies was an accepted tradition during Pulikali, Theyyam, and other rituals performed at temples.
“The male body is displayed in the form of six-pack abs, biceps, etc. We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent,” the order said.
“When the half-nude body of a man is conceived as normal and not sexualised, a female body is not treated in the same way. Some people are so used to considering a woman’s naked body as an overly sexualised one or just an object of desire,” the judge observed.
Fathima has played an active role in combating the patriarchal notions in Kerala society. However, since 2018, Hindutva forces have been targeting her after she attempted to enter the Sabarimala temple following an apex court that allowed women of all ages to enter the temple.
In 2014, Rehana Fathima had taken part in the “Kiss of Love” movement, largely led by the youth to protest against the growing moral policing in society.
In 2016, she challenged the social mores by getting women to stage the “tiger dance or Pulikali“, till then performed exclusively by men during the Onam festival in Thrissur.
For Fathima, the Kerala High Court verdict is “happy news” as well as a validation of her efforts to combat society’s patriarchal notions.
Rehana Fathima (Photo: Supplied)
“The major allegation was that I used my kids for sexual satisfaction. It was something neither I nor my children had ever imagined. I had already clarified that it is a false allegation and we also gave a description of our intent in the video,” Fathima told South First.
Following the case, she was remanded for 14 days. However, due to the Covid-19 pandemic, she spent time at a quarantine centre set up by the jail authorities.
Fathima stated that as far as children were concerned the first thing that they learn about was their mother’s body. She said that “judgement is the response to all those who criticised our intent”.
“Breasts are part of a woman’s body that every kid will have a connection with. The argument that that part of the body becomes obscene or an object merely for sexual pleasure after a certain age is a flawed notion of the society,” she said.
Fathima lauded the Kerala government’s intention to include sex education as part of the curriculum. She hoped that the upcoming generation might not have to go through such a trial. She expressed hope that they would be able to differentiate nudity and obscenity.
“Initially, I felt really sad that such allegations were raised against me. But the allegations and subsequent police actions bothered my children more than me. They started thinking that it was because of them that their mother had to stand trial,” she said.
However, she is happy to keep the children away from adverse situations and emotional trauma.
The 33-year-old activist says she has been targeted since the Sabarimala movement in 2018.
Fathima attempted to enter the Lord Ayyappa shrine in Sabarimala after the Supreme Court allowed women of menstruating age into the temple.
“I was one of the women who tried to enter the temple and I was targeted for that attempt. There was an agenda to not allow me to live in peace and intended to paint a picture that I am problematic to the society,” she said.
“But whatever happens in life, we have to live, and if there is truth in what we say, we will have to prove it. If I had given up then, it would be perceived that whatever these people allege against me is true,” Fathima added.
In February, this year, the apex court amended a bail condition that restored her right to print, post or publish her views on “any medium of the media”, despite objections by the LDF government in Kerala.
Fathima has filed a case against BSNL for terminating her. However, she said the police have not even filed a charge sheet.
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