Activists hail Kerala HC’s ‘positive’ ruling on porn, but choke on ‘mother’s food’

A recent judgment from the Kerala High Court on pornography has triggered a debate in legal circles.

The judgment, quashing a chargesheet against a man who allegedly viewed pornography on his mobile phone, made it clear that privately viewing pornography without sharing or displaying it to others will not be considered a legal offence.

Justice P V Kunhikrishnan quashed the chargesheet against the man who had been arrested under Section 292 of the Indian Penal Code.

The major portion of judgment is seen as progressive and positive by legal experts but its concluding remarks on parenting has invited criticism.

“Pornography has been in practice for centuries. The new digital age has made it more accessible than ever before and it is available even to children and adults at their fingertips. A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy,” the judge said.

On sexuality

“But God designed sexuality as something for a man and a woman within marriage. It is not only a lust but also a matter of love and for having children too. But a male and female who have attained majority, doing sex with consent, is not an offence. Consensual sex between a man and woman is not an offence in our country, if it is within their privacy.

“A court of law need not recognise consensual sex or watching of a porn video in privacy because these are within the domain of the will of society and the decision of legislature. The duty of the court is only to find out whether it amounts to an offence,” read the order from justice Kunhikrishnan.

The court said that to attract an offence, there must be evidence to show that the accused sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever.

Athira PM, a feminist lawyer and a former public prosecutor, said: “The judgment underscores an important aspect of Section 292 cases. Rather than being considered in isolation, it should be placed within the broader context of recent court decisions that have eliminated the offense of adultery.

“The legal landscape is increasingly taking a favourable stance on such matters, and this judgment exemplifies that trend,” she said.

“At the same time, I find no justification for a statement such as ‘God designed sexuality for a man and a woman within marriage’, which appears totally uncalled for in such a decent judgment,” added Athira.

Mothers’ role

The concluding remarks by the judge have also not gone well with a section of jurists and activists.

The judge said: “I must remind the parents of minor children in our country. Watching pornography may not be an offence. But if minor children start to watch porn videos, which are now accessible on all mobile phones, there will be far-reaching consequences.

“The innocent parents will give mobile phones to their minor children to make them happy. Instead of delicious food made by the mother and a cake cutting ceremony on birthdays of children, parents are giving mobile phones with Internet access to their minor children as a gift to make them happy.

“Instead of purchasing food from restaurants through Swiggy and Zomato, let the children taste the delicious food made by their mother and let the children play at playgrounds at that time and come back home to the mesmerizing smell of mother’s food. I leave it there to the wisdom of the parents of minor children of this society. In the facts and circumstances of this case, I am of the considered opinion that no offence is made by the petitioner in this case.”

Athira said, “I suppose this is the aspect of the judgment that hardly anyone can endorse. Asserting that mothers should be solely responsible for cooking is highly objectionable, especially in an age where even the Supreme Court is establishing guidelines for gender-sensitive reporting and word usage. These should have been avoided in an otherwise progressive judgment.”

The petitioner was the sole accused in the crime registered at Aluva police station in Ernakulam district and chargesheeted with an offence punishable under Section 292 IPC in the Judicial First-Class Magistrate Court-I, Aluva.

"Legally, the judge is right on the section concerned. However, in this case, the petitioner has admitted that he was watching a porn video. It is not stated anywhere whether the petitioner disclosed to the police from whom he received the clip. If that be the case, the judge had the duty to direct the petitioner to disclose from whom he received the video with indecent representation of women and to enquire whether it was with consent, “ says Manu Wilson, a lawyer in Kerala High Court.