Nudity Of Female Upper Body Shouldn't Be Regarded As Sexual Or Obscene By Default : Kerala High Court

The depiction of a woman's naked body should not be regarded as sexual or obscene always, observed the Kerala High Court while discharging a mother from a criminal case pertaining to making a video of her children painting on her semi-nude body. Taking note of the woman's explanation that the video was made to challenge patriarchal notions and to spread a message against the over-sexualization of the female body, the High Court observed that the video cannot be regarded as obscene. She was chargesheeted for offences under under Sections 13, 14, and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).Justice Kauser Edappagath, while granting relief to the woman, invoked the principles of body autonomy. The judgment also made certain notable observations regarding the double standards prevailing in the society regarding male and female bodies."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".Nothing sexual in the actThe Court in this case was of the firm opinion that there was nothing wrong in a mother allowing her body to be used as a canvas by her children to paint in order to sensitize them to the concept of viewing nude bodies as normal. "Painting on the upper body of a mother by her own children as an art project cannot be characterized 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. To term this innocent artistic expression to be ‘usage of a child in real or simulated sexual act’ is harsh. There is nothing to show that the children were used for pornography. There is no hint of sexuality in the video. In the accompanying message, the petitioner has declared the purpose of the video as to make a political point against the default sexualisation of women’s body". Mere depiction of female nudity not obscene or sexualThe Court observed :"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".As regards the present case, the Court noted that the context was the political and artistic expression of the petitioner. The judgment, referring to Supreme Court's precedents in Ranjit D. Udeshi, Avareek Sarkar, stated that nudity should not be tied to sex."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 semi-nude 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"Intention of the video was to expose double standards in societyThe Court also came down heavily upon the 'double standard' prevailing in society in the way it regards nudity in men and women, and discerned that the intention of the petitioner in making and uploading the video was to expose the same. 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. When the half-nude body of a man is conceived as normal and not sexualized, 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 sexualized 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. The intention of the petitioner in making and uploading the video was to expose this double standard prevailing in society. Findings of the CourtThe Court noted that main offences charged against the petitioner were under Sections 10 r/w 9(n), 14 r/w 13(b) and 15 of the POCSO Act. Of the same, the Court took note that Section 9(n) r/w 10 is attracted when a person, being a relative of the child, commits sexual assault on the child, and proceeded to observe that sexual intent is sine quo non for the applicability of Section 7 of the POCSO Act which defines 'Sexual...

Nudity Of Female Upper Body Shouldn't Be Regarded As Sexual Or Obscene By Default : Kerala High Court

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