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Kerala HC : Rehana Fathima bail plea dismissed, accused under POCSO Act for Publishing Video Of Children Painting On Her Naked Body


Petitioner mother Rehana Fathima made a video with her 14-year-old boy and 8-year-old girl in which the children were seen painting on her naked body. She then posted the video over social media with “Body Art and Politics”.

The mother argued that she made the video for the aim of giving sex education, the bench disagreed with her argument and dismissed her bail plea.

“I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.” Justice PV Kunhikrishnan in the order

Charges on Rehana Fathima

In this matter, Cyber dome, Kochi City Police noticed the video over social media and submitted a report of “child pornography related crime in social media” before Inspector General of Police. Then the report was forwarded to Station House Officer, Ernakulam Town South Police Station for necessary action. The Ernakulam police then registered a case under Crime No.478 of 2020 under Sections 13, 14 and 15 of the POCSO Act and under Section 67B(d) of the Information Technology Act,2000 (I.T.Act). Section 75 of the Juvenile Justice Act (JJ ACT) is also got registered against the petitioner mother.

The Petitioner Submission

“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.”

The mother also argued that “morality of the society” cannot be reason of prosecuting a person.

“The petitioner contends that, morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person. Hence, the petitioner filed this Bail Application under Section 438 Cr.P.C apprehending arrest in the above case.”

Court further noted the argument as;

“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. No child who has grown up seeing his mother’s nakedness and body can abuse another female body. Therefore, vaccines against these false preceptions and expectation about women’s body and sexuality should be initiated from home itself.”

It was further argued that;

“While in school, the feminism of untouchability divides people into girls and boys. That is where the fear of the female body begins for girls. As well as curiosity of the female body begins for boys.”

The learned counsel of the mother argued that, “even if the entire contents of the video along with the write up is accepted in toto, no offence is made out.

The Bench Observed

Over the counsel argument that no offence has made, the bench said that although application has been submitted for deciding the bail, not for deciding the prima facie case, but court has been forced to make observations to answer the “contentions of the petitioner”.

“But in this case, the counsel for the petitioner argued that no offence is made out even if the entire allegations against the petitioner is accepted. The counsel argued that the ingredients of the offence are not made out. When the petitioner’s counsel argued in such a fashion, I am forced to decide whether there is any offence prima facie made out in this case. But I make it clear that my decision on merit is only to decide this Bail Application.”

The bench said that, use of children in any form of “sexual gratification”, attracts Section 13 of POCSO act. The Bench also talked about moral responsibility of a mother and said that, “As a mother, it is her duty and responsibility 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 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.”

The bench added that, new born totally unaware of the outside world and a mother introduce them to the world.

“A good mother has outstanding qualities. No one can replace her in life to her children…When a baby is born, he is totally unaware of the outside world. The mother plays an important part in introducing him to the world. The outlook that the child will form towards life depends a lot on the mother.”

The bench referred Manusmrithi Sloka as;

“From the point of view of reverence due, an Upadhyaya [A Guru who taught students in Gurukulam] is tenfold superior to a mere lecturer, a father is a hundredfold superior to a Upadhyaya, and a mother is a thousandfold superior to a father” (See Chapter 2 Sloka 145 in Manusmrithi)

The bench also referred Holy Qur’an as;

“Be grateful to Me and to both your parents, to Me is the eternal coming. (31:14) And in Sura Ahqaf He says: And We have enjoined on man doing of good to his parents; with troubles did his mother bear him and with troubles did she bring him forth; and the bearing and the weaning of him was thirty months (46:15)”

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