By Puneet Srivastava

Abstract

The XXX vs. State of Kerala case serves as a prism through which we can examine the broader issue of gender equality in India. It spotlights how legal interpretations and societal norms can either contribute to the advancement of gender equality or perpetuate disparities

Earlier this year, the Kerala High Court in the case XXX vs. State of Kerala pronounced a victory for women’s rights and also set a paradigm as to what constitutes child sexual abuse, especially when the parents are involved. The court, in its wisdom, discharged the accused – Rehana Fathima – facing several charges, including the stringent POCSO Act (Protection of Children against Sexual Offences Act), ruling, amongst other things, that “nudity and obscenity are not always synonymous”. The State had several arguments against the activist contending that she had sexually abused her children and used them for “sexual gratification”, alleging offences under POCSO, the IT Act and the Juvenile Justice Act.

The poignant saga unfolded in the wake of a viral video that captured a woman, a self-expressive artist, being painted by her children (a boy and a girl) on her naked torso. Several cases were filed against the woman under POCSO for alleged sexual abuse of her children.      She defended her actions as a form of self-expression and an attempt to break free from social and cultural taboos that constrain women’s bodies. The woman tried to challenge existing taboos spreading the message that there needs to be nothing sexual or offensive about a      naked female body. She did this by letting her kids paint on her bare chest. She, through this, went against the ever-luridly-eying female form, by permitting her children to paint her with colours of innocence.

The case brings to the forefront the deeply entrenched societal norms and cultural taboos in India, particularly concerning the female body and the protection of children. In Indian society, women’s bodies have long been a subject of fascination, control, and suppression. The judgment signifies a moment of reckoning, urging a re-evaluation of these norms and the liberation of women from historical shackles.

Rehana Fathima’s daring act to allow her children to paint on her bare chest was, in her own words, an attempt to challenge these oppressive norms. By doing so, she aimed to desexualize the female body and strip it of its objectification. Her act was an explicit assertion that there should be nothing inherently sexual or offensive about a woman’s naked body. It was a powerful message that sought to confront the ever-watchful gaze that has historically weighed down on women, allowing her children to paint her with the colours of innocence.

The judgment forces us to confront the question: What are the standards of obscenity and vulgarity when it comes to children’s protection in India? It challenges the idea that mere nudity is inherently harmful to children, emphasising the importance of intent. Rehana Fathima’s actions were not about sexual intent; they were about self-expression, breaking free from stifling social norms and allowing her children to be part of that liberating process.

This case echoes broader discussions in India regarding the intersection of gender, culture, and societal norms. It highlights the need for a cultural shift that liberates women from oppressive norms and advances their rights to self-expression and control over their bodies. While there is progress to be made, the judgment in this case can be seen as a small step towards changing societal perceptions and promoting women’s autonomy.

The judgment delivered by the court has far-reaching implications for women’s rights and empowerment in India. At its core, the judgment challenges the deeply ingrained societal norms and taboos surrounding the female body and the right of women to exercise agency over their own bodies.

Rehana Fathima, the activist at the centre of this case, defended her actions as a form of self-expression, pushing the boundaries of what is considered socially acceptable. Her decision to allow her children to paint on her bare chest was not only an act of personal expression but also a powerful assertion of the right to control one’s own body without being subjected to moral judgment or legal sanctions.

This case aligns with the broader women’s rights movements in India, where women have been demanding autonomy over their bodies and the right to break free from oppressive norms that dictate how they should behave and present themselves. Rehana Fathima’s actions symbolize the desire of many Indian women to challenge patriarchal norms and claim their own agency.

The judgment sends a clear message that women should not be subjected to unwarranted scrutiny, judgment, or legal action for their choices regarding their bodies. It emphasises the importance of consent and the absence of sexual intent, which should be the determining factor in assessing whether an act is offensive or abusive. In this context, the judgment helps to redefine societal perceptions of the female body, moving away from objectification and toward empowerment.

Rehana Fathima’s association with various progressive causes and her work for women’s rights further vindicate the non-sexual intent of her actions. The judgment acknowledges that the intent behind an act is crucial in differentiating between self-expression and obscenity. By acquitting her of all charges under the POCSO Act, it sets a precedent that reinforces women’s right to express themselves without fear of legal repercussions.

Several provisions of the POCSO Act describe sexual assault on children to include making a      child touch the breasts of a person, which is the case here. However, an important feature of the provision is “sexual intent”. The judge rightly states in the judgement, that sexual intent is “sine quo non” for the applicability of the said provision. Lack of sexual intent and an effort to normalise (and not sexualise) a female body was considered by the judge to acquit the woman of all charges under the POCSO Act. 

Beyond the precincts of mere legal discourse, the judgement is commendable on other grounds as well, where it ascends to a realm of social introspection while discussing the standards of obscenity and vulgarity for the offence alleged under the IT Act. The judge comments on the limited rights of women in comparison to men and the historical and contemporary discrimination that takes place due to it. He also goes ahead to discuss the struggles of Kerala with caste discrimination that has historically dealt with the nudity of women.  

The case also raises critical questions regarding child rights and parental autonomy. While the judgment in this case acquitted Rehana Fathima, it emphasizes the delicate balance between protecting children from abuse and respecting parental rights to raise their children as they see fit.

Child protection is a paramount concern in any society, and India is no exception. The Protection of Children against Sexual Offences Act (POCSO) aims to safeguard children from sexual abuse and exploitation. It is essential to ensure that children are not subjected to harm or trauma, and the law plays a crucial role in achieving this goal.

However, the judgment in this case highlights the importance of distinguishing between acts that genuinely endanger a child and those that may be unconventional but lack sexual intent or harm. In this case, the judge rightly emphasized the absence of sexual intent in Rehana Fathima’s actions and considered them an attempt to normalize, not sexualize, the female body.

Nonetheless, this judgment should not be misconstrued to mean that parents have an absolute right to raise their children in any manner they choose. The line between parental autonomy and child protection must be clearly defined, and decisions should prioritize the best interests of the child. Cases of sexual grooming and abuse within families are on the rise, making it essential for authorities to remain vigilant.

The judgment encourages a nuanced approach to assessing parental actions and their impact on children. While parents should have the freedom to make choices for their children, these choices should not harm or exploit the child. Child rights, including protection from abuse, should remain a top priority, and authorities should intervene when necessary to ensure a child’s safety.

However, as we savour this victory, the take on parenting needs to be taken with a bit of nuance. A question that can open is whether parents have the complete right to raise their children as per their wishes, or whether it has to conform to public morality or standards of obscenity, as was the case here. It might open up discussions on parental nudity that have been discussed at length in the West. In the case here, any sexual connotation if attached to the act of the mother and children, would be a travesty to justice and the pure relation of a mother and her children. However, this cannot be extended as far as to say that “Every parent has the right to raise their children in the manner they wish”. It becomes dangerous to say so, as we are in an age where cases of sexual grooming and harassment from family members are on an exponential rise. 

The XXX vs. State of Kerala case serves as a prism through which we can examine the broader issue of gender equality in India. It spotlights how legal interpretations and societal norms can either contribute to the advancement of gender equality or perpetuate disparities.

In India, as in many parts of the world, women have historically faced limited rights compared to men. This case accentuates how the legal system can either reinforce or challenge these historical and contemporary disparities. By acquitting Rehana Fathima and emphasizing the absence of sexual intent, the judgment signifies a crucial step in dismantling the entrenched norms that often work against women’s rights.

The case is not just about the acquittal of a woman; it’s about challenging deeply rooted norms that have long governed perceptions of women’s bodies and women’s autonomy. It offers a path towards greater gender equality by asserting the importance of consent and intent in determining what is offensive or abusive.

Gender equality is not solely about legal interpretations but also about societal attitudes. This judgment challenges societal attitudes that have constrained women, both in their self-expression and their roles as mothers. It promotes the idea that women should be free from oppressive norms and should have the autonomy to make choices about their bodies and their children without fear of legal repercussions.

In the general jurisprudence of India with regard to female nudity and obscenity especially in relation to children, this case may be a very small step. However, that does not stop us from commending the judgement given the important precedent it sets that will help protect the rights of women and children all over India. 

Author’s Bio

Puneet Srivastava is a 3rd year B.A. L.L.B. (Hons.) student at NUJS, Kolkata.

Image Source: https://www.barandbench.com/columns/shifting-legacy-of-kerala-high-court-part-ii