Children painting on upper body of their mother cannot be characterised as real or simulated sexual act: Kerala High Court

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"A mother–child relationship is one of the earth's most solemn and pious relationships. There is no bond stronger and more sincere than the one between a mother and her child. The essence of motherhood is pure and serene love. The statement of the children shows that they are in loving care of the petitioner. The children are exposed to prosecution against their own mother contrary to their wishes. No doubt, the prosecution of the petitioner will have torture and adverse effect on the children. Hence, in the best interest of the victims also, the prosecution cannot be allowed to be continued..", the high court observed while discharging the accused mother.

Painting on the upper body of a mother by her own children as an art project cannot be characterised as a real or simulated sexual act, nor can it be said that the same was done for the purpose of sexual gratification or with sexual intent, the Kerala High Court recently observed.

These observations came to be made by a single judge bench while hearing the plea filed by a 33-year-old women’s rights activist who posted a video on her social media platforms showing her two minor children, a boy (aged 14) and a girl (aged 8), painting on her semi-nude torso carrying the hashtag ‘Body Art and Politics’.

The video, uploaded on YouTube and shared through the woman's personal Facebook account, had triggered massive outrage, with several people slamming her for subjecting her children to what they considered to be an obscene and vulgar act and then posting the same for the world to see.

A case was eventually registered against the woman, allegedly succumbing to the public outcry. After investigation, the final report was filed at the Additional Sessions Court (For the trial of cases relating to Atrocities and Sexual Violence against Women and Children), Ernakulam for the offences punishable under Sections 10 r/w 9(n), 14 r/w 13(b) and 15 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”), Section 67B (a),(b),(c) of the Information Technology Act, 2000 (“IT Act”), and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act”).

After her application for discharge filed under section 227 CrPC was dismissed, the accused woman approached the High Court.

The high court viewed the said video in open Court and noted, "The two-minute video shows the petitioner’s son carefully, with utmost professional concentration, painting the image of a phoenix in the upper part of her body, starting from between the breasts and flowers around both nipples."

Going by the message accompanying the uploaded video, body painting was done as an artistic form of protest against the sexualised portrayal of the naked upper body of a woman and to express her views on bodily autonomy and the emancipation of women, the high court noted.

"To term this innocent artistic expression to be ‘usage of a child in real or simulated sexual act’ is harsh. There is nothing to show that the children were used for pornography. There is no hint of sexuality in the video. In the accompanying message, the petitioner has declared the purpose of the video as to make a political point against the default sexualisation of women’s body..", Justice Kauser Edappagath further opined.

As per the accused woman's sons' statement, Court noted that he found the art of body painting to be fascinating, and out of his childlike fascination, he requested his mother to paint on her body; she agreed to this request and let her torso be painted on.

"There is nothing on record to even remotely indicate that the petitioner did the said act with any sexual intent. Every parent tries their best to teach their children all about life. Every parent has the right to raise their children in the manner they wish. Children do not inherently grow up thinking that any action is right or wrong unless it is impressed upon them as such. There is nothing wrong with a mother allowing her body to be used as a canvas by her children to paint to sensitise them to the concept of viewing nude bodies as normal and thinking about them as more than just sexual objects only. Such an act cannot be termed to be one which is done with sexual intent", the High Court held.

Thus, holding that the court below completely overlooked the context in which the video was published and the message it had given to the public at large, the high court discharged the woman of the alleged offences.