New Delhi, July 28: A plea in the Supreme Court has sought examination on whether female nudity would per se constitute obscenity necessitating invocation of penal provisions by authorities under Protection of Children from Sexual Offences (POCSO) Act and Information Technology Act (IT Act).

The petition, an anticipatory bail plea, has been filed by Fathima AS, an activist from Kerala, who is apprehending arrest for offences under POCSO Act and IT Act after she uploaded a video on social media of her two minor children painting her naked body, Hindustan Times reported.

“The petitioner, while being semi-nude, has allowed her body to be used a canvas for her children to paint on and there can probably be nobody, except a pervert, who would be aroused to sexual desire by seeing the nature of the work,” the petition drawn by advocate Renjith Marar said.

A case was registered against Fathima after she uploaded the video on social media in June which later went to stir furore for offences of child pornography under POCSO Act for publishing such content which is an offence under the IT Act.

The Kerala high court had rejected her anticipatory bail plea on July 24.

“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”, the high court had said in its order.

Fathima contended that female nudity per se will not constitute obscenity and children painting on their mother’s body cannot be construed as child abuse.

Moreover, the message accompanying the uploaded edited video makes it clear that she intended to normalize the female form for her children and not allow distorted ideas of sexualisation to pervade their mind, Fathima submitted.

She also cited two Supreme Court judgments in this regard to make a case for her argument.

First was the 2014 judgment in Aveek Sarkar v. State of West Bengal in which the top court held that a photo taken by a father of his semi-nude daughter and nude son-in-law who were black and white respectively was intended to convey an anti-apartheid message and cannot be dubbed obscene.

The second judgment referred to was the famous case of Bobby Art International v. Om Pal famously known as the Bandit queen case. In this case, the movie which depicted the life of bandit turned politician late Phoolan Devi, had nude scenes. The court, however, held that nudity in the movie was not intended to arouse base desires but should be considered in the context of the story and the situation in the movie.

“Goddesses in Kerala are frequently depicted in idols and murals with bare breasts. When one prays at the temple, the feeling is not of sexual arousal but one of divinity. The body painting of men is part of pulikali (a folk dance in which men dance with their bodies painted with tigers and leopard prints). It cannot suddenly become obscene when the same is done on a woman”, the plea claimed.

Fathima had earlier attracted controversy when she attempted to enter Sabarimala temple in 2018 after the Supreme Court had struck down a law prohibiting entry of women in the hill top shrine in Kerala. She had to abandon her journey in the wake of massive protests by a violent mob of around 200 persons who had blocked her path after she reached the shrine.

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