Kerala High Court
Kerala High Court
Litigation News

Cannot agree that Sex Education should be taught like this: Kerala HC while dismissing Rehana Fathima's bail plea over controversial video

Following the controversy sparked by a video of her children painting her semi-nude body, Fathima had approached the High Court seeking bail in a case registered against her for child abuse and pornography.

Lydia Suzanne Thomas

The Kerala High Court today dismissed a bail application moved by Rehana Fathima, whose video of her children aged 8 and 14, painting her semi-nude body, caught the attention of police and social media (Fathima AS v. State of Kerala and Anr.)

Following the controversy sparked by her video, Fathima had approached the High Court seeking bail after apprehending her arrest in a case registered against her for child abuse and pornography.

Justice PV Kunhikrishnan today dismissed her plea, recording that he was "forced" to decide the prima facie existence of the alleged offences, in light of the petitioner's submissions.

The crux of the petitioner's submissions was that the offences she was charged with were not borne out of the video. Fathima's counsel, Advocate Renjith B Marar, argued that her only intention in uploading the video was for sex education.

Averring that the video was not to be watched in isolation, Advocate Marar had enlarged upon the necessity of watching the video in the context of its underlying message.

However, Justice Kunhikrishnan disagreed, opining,

"After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video. The petitioner, when shot and uploaded these videos in social media, she also claims that she wants to teach sex education to the children in the society. I cannot accept this stand of the petitioner."
Justice PV Kunhikrishnan

Fathima's lawyer had also submitted that none of the offences she was charged with could be made out against her. The Protection of Children from Sexual Offences (POCSO) Act makes the "indecent or the obscene representation of the child" a requirement, he stated.

Justice Kunhikrishnan, in turn, discussed each of the charges against the facts. He, however, clarified that his impressions were prima facie.

On POCSO charges

"According to the petitioner, she is teaching sex education to her children by uploading the video!"
Kerala High Court

Justice Kunhikrishnan, narrating that the petitioner was lying naked in her video as her children painted, remarked that it was not so much her act as her distributing a video of it that was problematic. He opined,

"I can understand if the mother is doing these activities inside the four walls of her house ... Whether such a video can be uploaded in social media ... to teach sex education to all children is the question to be decided."

Explaining that the main ingredient of the POCSO Act offence she was charged with was "sexual gratification", Justice Kunhikrishnan held that prima facie it appeared that the petitioner's video was made for that purpose.

Moreover, he found the case to be covered by the explanation in Section 13 of the POCSO Act, under which involving a child for facilitation and distribution of pornographic material is punishable.

The extracts from Section 13 emphasized upon by the Court in this regard include:

"Whoever, uses a child in any form of media … for the purpose of sexual gratification … which includes … the indecent or obscene representation of a child … shall be guilty of the offence of using a child for pornographic purposes.

Explanation - For the purpose of this section, the expression "use a child" shall include involving a child through any medium … and distribution of the pornographic material."

He further drew attention to Fathima's expression in the video as well as the "indecent and obscene manner" the children were represented to opine that the offence of Section 13 was prima facie made out. He added that the matter required custodial interrogation to ascertain its correctness.

"I watched the video. The expression of the petitioner, while the children are painting on her breast, is also important. Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation ..."
Kerala High Court

On charges under the IT Act

Fathima was also charged with "facilitating the abusing of children online" under the Information Technology Act, 2000 [Section 67-B(d)]

The judge stated that the offence had to be investigated completely and that, prima facie, the offence could not be ruled out.

On imputations of cruelty

Justice Kunhikrishnan was unwilling to delve into the question of whether Fathima's video constituted cruelty through assault or abuse. He stated, nonetheless, that an investigation seemed necessary in the circumstances.

Placing himself in the 'petitioner's position' as required by the Supreme Court in Samaresh Bose, Justice Kunhikrishnan found that he "could not say there was no obscenity" after he applied his judicial mind.

Clarifying that his remarks on the offences charged against Fathima were "only to resolve the contentions raised by the petitioner", Fathima's bail application was dismissed.

Read the Order here:

Fathima A.S. v. State of Kerala - Order - dated July 24.pdf
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