Kerala HC rejects Rehana Fathima’s bail plea, says POCSO may be applicable

Rehana Fathima was booked under various sections of POCSO Act for making her children paint on her semi-naked body and posting a video of the same on social media.
Kerala HC rejects Rehana Fathima’s bail plea, says POCSO may be applicable
Kerala HC rejects Rehana Fathima’s bail plea, says POCSO may be applicable

The Kerala High Court on Friday rejected the anticipatory bail plea of activist Rehana Fathima, who was booked for a video where her kids were seen painting on her semi-naked body.

The Kochi-based activist had earlier uploaded this video on YouTube and named it ‘Body Art and Politics’, and later on to her social media page where it triggered a controversy.

On Friday, rejecting her bail petition, Justice Kunhikrishanan observed that this was not a fit case in which the petitioner could be released on bail.

While the petitioner’s counsel argued that none of the POCSO and others sections would apply in the case as there is “no indecent or obscene representation of the children,” the judge, however, stated that “he is not in a position to say that no offence under POCSO Act and other sections is attracted in this case.”

The judge said that the petitioner “had 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. Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”

He also observed that he is "not in a position to agree with the petitioner that she should teach sex education to her children in this manner."

The court observed that prima facie, he is of the opinion that the petitioner “uses the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they are painting on a naked body of their mother”.

The judge also observed that the “expression of the petitioner, while the children are painting on her breast, is also important” and added that a custodial interrogation is required to establish whether it amounts to use of children for the purpose of sexual gratification. The judge reiterates that “he is not in a position to say that no custodial interrogation of the petitioner is necessary in the case.”

On Rehana’s argument that her intent was to teach sex education to children when she uploaded the video on social media, the judge said that he cannot accept this stand of the petitioner.

“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 is reached by uploading the same 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 in social media,” the order states.

Rehena was booked under Sections 13, 14 and 15 of the POCSO Act which deal with “using a child in any media, for the purpose of sexual gratification,” Section 67B(d) of the Information Technology Act (facilitates abusing children online) and section 75 of the Juvenile Justice Act (punishment for cruelty to children).

She then moved the Kerala High Court for anticipatory bail with the argument that the video was offer ‘sex education and for openness so far as the discussion on body and body parts is concerned.”

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