Kerala High Court: P. V. Kunhikrishnan, J., addressed a matter wherein a mother uploaded a video on social media wherein she was getting painted by her two minor children and the purpose to do so was to teach sex education to them. In the said matter, Court made the observation that,
“If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.”
Petitioner a mother of two minor children asked them to paint her naked body above the navel. The video was recorded of the said act and uploaded on social media with the heading — “Body Art and Politics”.
Cyber dome, Kochi City Police on discovering the said video submitted the report before the Inspector General of Police and Commissioner of Police, Kochi stating the said to be “Chid Pornography related crime” on social media.
The said offence was registered under Section 13, 14 an 15 of the Protection of Children from Sexual Offences Act, 2012 and under Section 67 B(d) of the Information Technology Act, 2000 alongwith the allegation of Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Battle against body discrimination
Petitioner’s submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone.
Petitioner added that,
“…morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.”
A write up was also added with the said video, according to which the intention of the petitioner was clear and hence in view of the same no offence could be made out against the petitioner.
A small snapshot of the written text by the petitioner:
“In a moral fascist society that look towards the female body as mere illusions. Exposing the views which the society seek to conceal is also a political Act. In today’s society where a female is restricted or Censored from opening her mouth or utter a word with regards to Nudity or Sexuality, brave political act against it is what time demands. When Compare to Male body, Feminine body and her Nakedness has been considered as a mere 55kg of Flesh is just because of the wrong Sexual Education put forward by our society. Society has Customized the Mindset of people in such a way that while looking at a woman who wear a legging make you Sexual arousal whereas the man Stands Macho with his Chest-Hair Exposed as well as showing naked legs by folding the dhoti he wears as a statuesque, doesn’t Connect to Sexual Arousal is just because of the wrong sexual consciousness that is currently being injected by the society. Just as beauty is in the eye of the beholder, so is obscenity in the eyes of the beholder.”
Petitioner’s counsel relied on the judgments of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) and in Samaresh Bose v. Amal Mitra [(1985)4 SCC 289] to contend that, there is no indecency or obscenity even if the entire allegations against the petitioner are accepted.
Decision of the Bench
Court stated that according to the petitioner she was teaching sex education to her children by uploading the video. It added that if the mother was doing these activities inside the four walls of her house the situation could have been understood, as it is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.
“Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”
“Whether any offence is attracted in such cases, is the question.”
In accordance to Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.
Main ingredient of the above Section:
“…the child should be used in any form of medium for the purpose of sexual gratification.”
Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they were seen painting the naked body of their mother.
Court on watching the video states that the expression of the mother when both the children painted her breast was also important — Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation of the petitioner.
Bench further adds that, the Explanation to Section 13 clearly states that the expression of ‘use a child’ shall include involving the child through a medium like print, electronic, computer, or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.
In view of the above Court stated that it is not a position to say that no offence under Sections 13,14 and 15 of the POCSO Act is attracted.
Section 67B(d) of Information Technology Act, 2000
Section 67B(d) of the Information Technology Act says that whoever facilitates abusing children online shall be punished. Petitioner asked her children to paint on her naked body. Thereafter, the petitioner uploaded the video in social media, hence in view of the said, in Court’s opinion, prima facie it cannot be ruled out that no offence under Section 67B(d) of Information Technology Act, 2000 is made out.
Investigating Officer shall investigate upon such matters as stated above.
Bench in view of the above stated that,
After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video.
Bench on applying its judicial mind stated that it is not in a position to say that there was no obscenity in the video and added that the said observation was only for the purpose of present bail application.
While parting with the present order, Court added to its conclusion that,
The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings.
“…in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”
The petitioner feels that, she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.
In view of the above Court dismissed the bail application of the petitioner. [Fathima A.S. v. State of Kerala, 2020 SCC OnLine Ker 2827, decided on 24-07-2020]