Naked Body of a Woman Shouldn't Be Deemed Sexual By Default: Kerala High Court

Justice Edappagath's observations came while quashing a case filed against 33-year-old women's rights activist Rehana Fathima, who was facing charges for a video she had uploaded to YouTube.

New Delhi: The Kerala high court on Monday (June 5) made important observations about the differing ways society treats nudity for male and female bodies, and said that nudity should not always be tied to sex.

“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,” Justice Kauser Edappagath said, according to Bar and Bench.

In temples and other public spaces, the judge said, sculptures of nude female bodies are considered art.

“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. Such nude sculptures and paintings freely available in public spaces are considered art, even holy. Even though the idols of all Goddesses are bare-chested, when one prays at the temple, the feeling is not of sexual explicitness but of divinity,” the court said.

Justice Edappagath’s observations came while quashing a case filed against 33-year-old women’s rights activist Rehana Fathima, who is facing charges under the POCSO, Juvenile Justice and the Information Technology (IT) Acts for a video she had uploaded to YouTube. In the video, her two minor children were painting her body above the navel.

Fathima had earlier told the high court that she believes there needs to be openness in the discussion on body and body parts, and there is nothing to be hidden within and outside the family about the same. According to her, children should be given sex education, and they also need to be made aware of the body and body parts. As a result of this, she believes children will mature to view the body as a different medium altogether, rather than see it as a sexual tool alone. She claimed that she uploaded the video with this intention.

In his judgment on Monday, Justice Edappagath said society’s differing attitudes towards male and female nudity was hypocritical. “Body painting on men is an accepted tradition during ‘Pulikali’ festivals in Thrissur, Kerala. When ‘Theyyam’ and other rituals are performed at the temple, painting is conducted on the bodies of male artists. 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,” he observed.

“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. There is another dimensional view about female nudity – that is, female nudity is taboo because a naked female body is only meant for erotic purposes,” he continued.

In all of this, the court said, women’s bodily autonomy is often ignored and diluted: “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.”

Justice Edappagath agreed with Fathima’s contention that her video of body painting with her children “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”.

“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, according to PTI.

The court rejected the prosecution’s argument that the video was obscene because Fathima had shown her upper body. Nudity and obscenity are not the same thing, the court said. “It is wrong to classify nudity as essentially obscene or even indecent or immoral,” the judge said.

He also rejected the contention that Fathima’s video went against social morality. “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,” the court said.

“Society’s morality and some people’s 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 continued.

The case – rather than Fathima’s video – could have an adverse effect on her children, the judge said. “No doubt, the prosecution of the petitioner (Fathima) will have torture and adverse effect on the children. Hence, in the best interest of the victims also, the prosecution cannot be allowed to be continued,” his judgment said.