Rehana Fathima has approached the Supreme Court challenging the order of Kerala High Court denying anticipatory bail plea in a case registered for posting a video on social media in which her two minor children were seen painting on her semi-nude body.
The police registered cases for the offence under section 67 B (d) (publishing of material depicting children in the sexually explicit act) of the Information Technology Act and section 75 of the Juvenile Justice (Care and Protection of Children) Act and sections 13, 14 and 15 of the Protection of Children from Sexual Offences Act (POCSO).
In her petition before the Supreme Court, Fathima submitted that nudity cannot be treated as obscenity. She asked "whether the body painting on the semi-nude body of the mother by the children would amount to any offence punishable under Sections 13 and 14 of the POCSO Act 2002?."
Her counsel Renjith B Marar pointed out that all the Goddess idol are bare-chested. When one prays at the temple the feeling is not of sexual explicitness but one of divinity. The morality of the most puristic Brahmanic society or the Society that craves to be traveling back to the pre-Constitution Brahmin dominated era cannot be the touchstone for deciding the Criminal act of indecency or obscenity. The video cannot be watched in isolation as well, without understanding the message which is being conveyed through the video as well as the write up along with the video. There is no indecency or obscenity involved in the video. Much less there is no indecent or obscene representation of the children.
The plea was rejected by the High Court on the ground that the offence would not have been attracted if the mother had not posted the video on the public platform.