Observing that painting nude images prima facie amounted to an offence, the Bombay high court has refused to quash a criminal complaint against an artist who painted nude and derogatory pictures of his estranged wife in his bedroom.
The couple, who got married in 1998 and jointly own a flat, were staying in separate rooms in Mittal Ocean View on Juhu Tara Road in suburban Santacruz as they were fighting a divorce case in a family court.
The wife had alleged offences against her artist husband Chintan Upadhyay under Indecent Representation of Women (Prohibition) Act for painting her in the buff.
Acting on her complaint, the Bandra Magistrate had issued process on January 8 against Upadhyay, who challenged the order in the high court.
The high court did not agree with Upadhyay that the complaint disclosed no offence punishable under the provisions of Indian Penal Code or Indecent Representation of Women's Act or that the continuation of proceedings in pursuance thereof is an abuse of the process of law.
"Once the complaint discloses offence, then it can not be thrown out at the threshold as prayed by the petitioner and particularly on the ground of his absolute right of freedom of speech and expression," observed justice SC Dharmadhikari.
It (the complaint) can not be thrown out on the ground that the work is confined and restricted in private area or private room as well, the Judge further said.
"Once, the areas in the flat or the rooms are not demarcated, the flat is not divided, the petitioner ordinarily resides at Delhi but he and (his) wife are only occupying different rooms, then, it can not be held that the petitioner exercised his right to paint in his own bedroom in furtherance of his right to privacy and life and liberty guaranteed by the Constitution," Justice Dharmadhikari observed.
The allegations clearly point out that the room which is not frequently used and occupied by the petitioner is open to servants and driver and the paintings can be seen by them as also the wife. Hence, it would not be proper to quash the complaint, the judge noted while dismissing the petition.
The judge, however, clarified that all observations in the present order and also in the order issuing process are prima facie and tentative in nature and shall not influence the trial court while deciding the case.
"Further, it is not as if the respondent No.1 (wife) will not have to discharge the burden in law. She has to prove her allegations independent of the prima facie findings", the Judge noted.
"At the stage at which the matter stands namely, issuance of process, it cannot be held that any of the fundamental freedoms and particularly as noted above, have been violated by the order issuing process," Justice Dharmadhikari said.
"I have no hesitation in my mind in holding that the order issuing process can not be interfered with on the ground that Article 19(1)(a) of the Constitution is violated," he observed.
Further, the right of privacy or life and liberty guaranteed under Article 21 of the Constitution is also not violated by an order issuing process on a complaint of present nature because what the petitioner terms as confined or restricted and private activity can not be decided by his version alone. It is ultimately for the court to decide as to whether the offence under the Act has been committed or not, the judge said.
Justice Dharmadhikari said the petitioner's arguments overlook at least two things...that freedom of a citizen under Article 19(1)(a) is not absolute. It is subject to reasonable restrictions and the same enables making a law imposing reasonable restrictions on the exercise of the right in the interest of inter alia public order, decency or morality.
The wife said she had a pet dog. However, the husband took the dog from matrimonial home to native place in Jaipur. She then adopted two dogs in 2011 and kept them in their flat at Mumbai for her own safety and company. The couple had also hired two male servants for the upkeep of the house.
On July 20 last year, the wife found that the servants were behaving in an unusual manner and staring at her. When she asked them what was the matter they asked her to go to her husband's room and see her paintings he had drawn.