“… Tomorrow, when their partners are worried about their bodies becoming too sturdy and sexy if they need to confidently tell that this naturality is your real beauty. They have to grow up seeing the natural women bodies. These seeds need to be sown when they are young with proper sex education as well as sexual consciousness. No child who has grown up seeing his mother’s nakedness and body can abuse another female body. Therefore, vaccines against these false perceptions and expectation about women’s body and sexuality should be initiated from home itself.”—— Rahena Fathima
The role of a mother is always, no doubt, important in every child’s life. The mother, who teaches everything, directly or indirectly to the children because she is the central pillar of a family. Here a mother, who always says her body is her weapon against all social injustices, tried to educate her children what is sexuality. The mother also tried to educate other children too that’s why posted the video in social media. Here the question is whether a mother’s naked body creates any excitement in her child? Answer may be certainly not. But the naked body of any other women may make excitement in other children and men.
A case was booked against Rahna Fatima, who is always has a friendship with controversies, under Section 11 read with 12 of POCSO Act, Section 75 of Juvenile Justice Act and Section 67 of IT Act. The FIR is lodged based on a complaint filed by Arun Prakash, a Thiruvalla based lawyer.
The video posted by Rehena Fathima goes viral within hours. As usual, there are differences of opinion regarding the video. Obviously morality and legality is pole apart in some cases. In the video, the mother is half naked above her naval and posing to her kinds of 14 years and 8 years to draw pictures on her breast and neck area.
The agitations and supports regarding the video are still roaring in our society. Whatever happened, Rahena Fathima is adamant in her acts, she still says she has a bonafide intention in the act. But based on the nature of the FIR, Rehena forced to approach the High Court to get an anticipatory bail.
The High Court rejected her bail plea. Justice PV Kunhikrishnan observed, “She used the children for the purpose of sexual gratification because they are represented in the video in an indecent and obscene manner as they are painting on the naked body of their mother.”
According to the petitioner, Rehena is teaching sex education to her children by uploading the video. It is also admitting that proper sex education is very essential today. But the way we teaching is also important. The judge again observed I can understand if the mother is doing these activities inside the four walls of her house. It is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.” In Manusmriti and Holy Quran, the mother is singled out as she bears a greater responsibility, said the court. The court also made it clear that the investigating officer should investigate the case untrammeled by any of the observations in this order.
Rehena is now approaching the Supreme Court. She says that she will continue the war till she gets justice. Why everyone fears the body of women? She asks. According to her, her ever strongest weapon against all social injustices and inequalities is her own body. “In a sexually frustrated society, women simply do not feel safe in clothes. It is high time to open up and tell children what the female body is all about and what sex and sexuality really mean,” she says. “Just as beauty lies in the eyes of the beholder, so is porn in the eyes of the beholder,” she rationalizes her act.
Irrespective of the social catalogues of development that the state proudly lays claims to a detailed introspection of socio cultural sensibilities of the time tell us a different story. On moral aspect, the court said it cannot accept the petitioner’s act and contention that the video was shot and uploaded for sexual education to children. Now let us check what law says.
Speech and expression is a natural gift which a human being acquires by birth. The freedom of speech and expression is also guaranteed under Article 19(1)(a) of the Indian Constitution as his/her fundamental right. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. But everyone has no right to express and publish according to his/her whims and fancies. There are some reasonable restrictions stipulated under Article 19(2) of Indian constitution.
Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech under following heads:
- security of the State,
- friendly relations with foreign States,
- public order,
- decency and morality,
- contempt of court,
- defamation,
- incitement to an offence, and
- sovereignty and integrity of India.
Opposing the bail plea, Senior State Prosecutor Suman Chakravarthy submitted that the POCSO Act is enacted to prevent the exploitative use of children in pornographic performances and materials. In the video, the petitioner was lying naked and her two children, a boy and a girl aged 14 and 8 are painting on her naked body.
Of course, it is the duty and responsibility of a mother to be the emotional anchor of their children so that they can face the storms of life. The children are not born with a moral compass and it is the job of parents especially the mother to built that compass for them.
“You are also responsible for living your life according to the same moral values that you preach, as that is the only way kids will learn. The petitioner has got the freedom to teach her child according to her philosophy. But, that should be within the four walls of her house and should not be forbidden by law,” observed the court.
In the case, the petitioner made the video viral through various social media platforms. Section 67 of IT Act 2000 says about publication and transmission of obscene material that is lascivious in nature. The section is gender-neutral.
The terms ‘obscene’ and ‘lascivious’ are subjective and are open to being interpreted differently by different people. In Roth v. United States reported in 354 US 476, the US Supreme Court held that obscenity does not confine within the limits of constitutional freedom of speech or press. Materials which are ‘sex-related’ having a tendency of ‘exciting lustful’ thoughts would fall under the ambit of obscene. The explanation of obscenity laid down, in this case, was three-fold. It required the concerned matter to be ‘patently offensive’, possessing ‘no redeeming social value’ and to be evaluated by the ‘Community Standards Test’ in Towne Cinema Theatres v The Queen reported in 1985 SCR volume 1 page 494ccording to which community standards and preferences outweigh dominant preferences to determine the obscenity of a source. The Indian courts adopted much more broad definition of obscenity. In a landmark case, Aveek Sankar and another v State of West Bengal and others reported in (2014) 4 SCC 257 said that an act cannot be considered obscene merely for its nude content. One significant gap regarding section 67 is that it fails to separate the non-consensual acts involving ‘purported obscenity’ from the consensual ones. This puts a big question on consent versus the societal standards of classifiable obscenity.
While rejecting the bail plea of Rehena Fathima, the judge observed, “I place myself in the position of the petitioner and from the viewpoint of the viewers of every age group in whose hands this video reached when it was uploaded by the petitioner. After applying my judicial mind, I am not in a position to say that there is no obscenity in the video when it is uploaded on social media.”
Many opined that the act of Rehena Fathima is okay since they were her own children and do not made the matter worse. But another question is remaining, if a father allows his naked body to his 13-14 year old girl to paint, then that will be another thing in the society.
If comments apart, the psychology of children is also very important. Many psychologists opined regarding the same in a slamming manner. They opined that Rehena made the kids lab rats to experiment her own pseudo moralistic concepts on respecting female body and sexual sensitivity.
Senior Psychiatrist Dr CJ John says “the only fact mentioned in the video description that one would agree with the sexual education to children should begin at home but what Fathima has done with the aim of educating her children is a clear example of how children are used as tools to express an adult’s philosophy about sexuality and gender respect. At this tender age children cannot understand sexuality. Their views on sexuality will be clear only when they grow older. Her kids won’t even able to understand why they were asked to paint on their mother’s body. This fact makes her attempt a mere unfortunate pseudo revolution that clearly neglects the social and psychological impacts it could have on her children”.
The police booked Rehena Fathima under Section 11 and 12 of POCSO Act.
Section 11 defines sexual harassment,
A person is said to commit sexual harassment upon a child when such a person with sexual intent-
- Any person utters or makes any sound, or makes any gesture or exhibits any object or part of the body with the intention that such word or sound shall be heard, or such gesture or object or part of the body shall be seen by the child; or
- Makes a child do such things mentioned hereinafter;
- Entices or Showing a child anything which may relate to pornography or pornographic purposes, watching or contacts child either directly or digitally, threatens to use a real or fabricated depiction through electronic, film, or digital or any other mode, of any body part of the child
Explanation: Any question that involves “sexual intent” shall be a question of fact.
Section 12 prescribes the punishment of imprisonment for a term, which may extend to three years and shall also be liable to fine.
From this, we can understand, the alleged offences are bailable. In bailable offences, bail is the right of the accused but here the court invokes its decretory power.
Not granting the bail, HC ordered for a custodial interrogation. Many lawyers observed the order of High Court is a problematic one.
Prasanth Padmanabhan, A Supreme Court on record lawyer observed “The Order of Kerala High Court on July 24 in Rehena Fathima’s bail application is the latest example as to how the Judges deviate from the path articulated by great Justice Krishna Iyer.” As Justice Krishna Iyer said “finest hour of under trial justice” after granting bail to Dr Binayak Sen, the award winning doctor who had been selflessly working for several years in rural areas of Chattisgharh and was convicted on charges of criminal conspiracy and sedition. In the same case, Justice Krishna Iyer hoped that the courts of India hereinafter will be liberally generous in the grant of bail. But in Rehena’s case, though POCSO Act sections applied under sections 11 and 12 are bailable, the High Court refused to grant bail.
Moreover the said sections clearly depict the intention of the person. In such situation, Rehena adamantly says that she had a bonafide intention to give sexual education to her children. There is no intention to use own children as sexual toys or something like that. After discussing the merits, the learned Judge here mentioned that those discussions should not come in the way of a fair trial and those are only for deciding the bail. The relevant questions the Judge ought to have asked are whether there is a chance that the accused would jump the bail if she was granted it and whether custodial interrogation is necessary at all? Those questions were neither raised nor answered in the Order.
The Judge finds no fault in painting on the naked body of the Petitioner had it been within the four walls of her house but uploading the video is not permissible. If so section 67 of IT Act matters. Section 67 says : Whoever, Publishes or transmits or causes to be published in the electronic form, Any material which is lascivious or appeals to the prurient interest or If its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to Rs 10 lakh.
Sections 67 and 67 A of IT Act are non bailable, the High Court also expressed that there is no obscenity in the content but not answered why Rehena Fathima denied bail.
The remaining is Section 75 of JJ Act: the section says:
“Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:
Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases:
Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees:
Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regulartasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees
Section 75 of the JJ Act really matters. Here the son of the accused is of 14 year and the daughter is of 8 year. The girl is too minor to understand the act or the purpose of the act of the mother, even whether the intention of her mother bonafide or not. But the age of the son is relevant. He is a teenager. Here the expert opinion is highly recommended.
Dr Philip John, a senior child psychiatrist said “ the video did not show any justice to art. A child’s body is considered sanctified in our society and the video shows that sanctity of the kids was being destroyed by their mother herself. Children are taught of good and bad touches and what was sown in the video is undoubtedly a bad touch in the name of art. In a way, it is child abuse. There is a need to check this kind of actions on the social media”
Even if there are arguments for equality for men and women, whether the society admits when a father tries to provide sexual education to his own 14 year old daughter?
Here Rehena is a mother, who wish to teach everything to her own children certainly forgets that something in the nature is not to be taught or the way to teach something is very different from what she did….
Probably Rehena may get Bail from the Apex Court but she may be probably struggle to convince the court what is the ‘POLITICS’ behind her ‘BODY ART’.
