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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.
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,
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.
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,
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.
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.
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.