Madras High Court
S. Jaya vs The State Of Tamil Nadu on 25 September, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No. 10337 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 05.09.2024
PRONOUNCED ON 25.09.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.10337 of 2024
S. Jaya .... Petitioner
Vs
1. The State of Tamil Nadu,
Rep. by its Principal Secretary,
Health and Family Welfare Department,
Secretariat, Chennai – 600 009.
2. The Commissioner,
Greater Chennai Corporation,
Ripon Building,
Chennai – 600 003.
3. The Additional Health Officer,
Greater Chennai Corporation,
General Health Department,
Ripon Buildings,
Chennai – 600 003.
4. The Zonal Officer,
Zone – 7, Chennai Corporation,
Ambattur, Chennai – 53.
5. The Deputy Director of Health Service,
(Public Health),
Krishnankoil @ Nagercoil,
Kanyakumari District. .... Respondents
Prayer : Writ Petition filed under Article 226 of Constitution of India praying
https://www.mhc.tn.gov.in/judis
Page 1 of 10
W.P.No. 10337 of 2024
for the issuance of a Writ of Certiorarified Mandamus calling for the records
relating to the order passed by the third respondent in Na.Ka.No.14/0308/2024
dated 23.01.2024 and quash the same and direct the respondents to permit the
petitioner to exhume the body of the petitioner's husband namely I.Austin
buried at Ambattur Corporation graveyard within the 4th respondent zone and to
rebury at his native place as per protestant Christian rites in the family
graveyard located at New S.Nos.599/24, 25 & 26 (Vembadivillai),
Kallukoottam Village, Kalkulam Taluk, Kanniyakumari District, at the cost of
the petitioner forthwith.
For Petitioner : Mr.Ravikumar Paul
Senior Counsel
for Mr.T.Jerry V.V.Sundar
For R1 & R5 : Mrs.M.Sneha
Special Counsel for Health Department
For R2 to R4 : Mr.P.T.Rama Devi
Standing Counsel
ORDER
This Writ Petition has been filed challenging the order passed by
the third respondent dated 23.01.2024, thereby rejected the request made by the
petitioner seeking permission to exhume the body of her husband buried at
Ambattur Corporation graveyard to rebury at his native place as per protestant
Christian rites.
https://www.mhc.tn.gov.in/judis
2. The petitioner's husband, while he was working as an Assistant
in this Court, was affected with COVID-19. Immediately, he was admitted in
the Government Rajiv Gandhi Hospital, Chennai. Unfortunately, due to heart
attack, he died on 15.08.2020. His native place is Vembadivillai, Kallukootam
Village, Kalkulam Taluk, Kanyakumari District and his entire family members
are residing there. They have a common graveyard in their own land and the
bodies of their family members were buried there. After demise of her husband,
the petitioner sought for permission from the respondents to take his corpse to
their native place for burial as per the last wish of the petitioner's husband.
However, the petitioner was denied permission stating that the COVID-19
patients body cannot be carried to a long distance and that there is every
possibility of spreading of the said virus. Therefore, without consent of the
petitioner and her family members, her husband body was buried at Ambattur
Corporation graveyard. During burial, the petitioner and her family members
were not allowed to perform rituals/prayers in accordance with the Christian
rites and customs. Therefore, it caused great hardship and irreparable pain to
the petitioner and her family members.
3. In fact, after demise of petitioner's husband, her mother-in-law
died on 28.05.2021 and her body was taken to their native place and buried
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there. Thereafter, the second and third waves of COVID-19 came and as such
the petitioner did not seek any request to exhume and rebury her husband's
corpse in their native place. Therefore she waited till recuperation of COVID-
19 and made a representation on 12.01.2024 seeking permission to exhume her
husband body and to rebury the same at their native place. It was rejected on
the ground that there is no provision to exhume the buried body under law.
4. The learned Senior Counsel appearing for the petitioner would
submit that the order impugned in this writ petition is clear violation of Articles
14, 21 and 25 of the Constitution of India. The petitioner and her family
members were not allowed to perform rituals/prayers in accordance with the
Christian rites, while burying her husband body. They have owned graveyard in
their native place, in which, the bodies of her entire family members were
buried for the purpose of subsequent prayers on every death anniversary. There
is absolutely no prejudice would be caused to anybody if the body of petitioner
husband is exhumed to rebury in their native place at her own cost. Now
almost 4 years have completed from the date of burial. Therefore, only bone
remains may be available and as such there is no possibility of any health
hazard issue to anybody while exhuming the remains of the petitioner's husband
body. He relied upon the Judgment of this Court in W.P.No.7620 of 2020 dated
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31.03.2021. He also produced photographs showing that the graveyard in
which the body of the petitioner's husband was buried is in a dilapidated
condition and no one is there to maintain it. Therefore, the petitioner and her
family members could not offer any prayer in the graveyard on the date of his
demise.
5. The fourth respondent filed a counter and the learned Special
Counsel appearing for the Health Department submitted that the petitioner's
husband died due to COVID-19 on 15.08.2020 & therefore, the body of the
petitioner's husband was not handed over to the petitioner or her family
members. It was buried at Ambattur Corporation graveyard. After a period of
four years, the petitioner submitted a representation seeking permission to
exhume the body of her husband to rebury the same in their native place. There
is no specific provision of law in India relating to the exhumation of the body
except under Section 176(3) of Cr.P.C. Therefore, the request made by the
petitioner was rejected. In support of his contention, she relied upon the
Judgment of the Hon'ble Supreme Court of India in Civil Appeal No.6544 of
2022 in the case of Mohammed Latief Magrey Vs. The Union of Jammu and
Kashmir, in which, the Hon'ble Supreme Court of India held that once the body
was buried after performing all the rituals and prayers as per their religious rites
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and customs, the body should not be disturbed unless there is a strong showing
of necessity that disinterment is within the interests of justice.
6. Heard the learned counsel appearing on either side and perused
the materials available on record.
7. In the case on hand, admittedly, the petitioner and her family
members were not allowed to perform rituals/prayers while burying the body of
her husband as per Christian rites. Of course, the petitioner's husband died due
to COVID-19 and as such no one was allowed to do any last rites/prayers by
touching the body during burial. In a similar nature, a person who died due to
COVID – 19 was buried in a cemetery by observing the Christian ceremonies.
In the Judgment relied upon by the learned Senior Counsel for the petitioner,
this Court had held that Article 21 of the Constitution of India includes the right
to have a decent burial. Further held that after considering the guidelines
issued by the World Health Organization, it is clear that while burying the dead
body, in the context of COVID-19, there is no evidence of a person having
become infected from exposure to the bodies of the persons who died from
COVID-19 and as such the persons who died due to COVID-19 can be buried
or cremated. Therefore, this Court intends to set aside the order rejecting the
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request made by the petitioner for exhumation of her husband's body from
Velangadu burial ground and rebury the same at their native place.
8. In the case on hand, now four years have lapsed after burial of
the the petitioner's husband body who died due to COVID-19. Even as per the
guidelines issued by the World Health Organization and the Scientific reports,
there is no evidence of persons having become infected from exposure to the
bodies of the person who died from COVID-19. Further, the people who died
due to COVID-19 can be either buried or cremated. There is absolutely no
health hazard issue or any legal impediment if the body of the petitioner's
husband is exhumed in order to perform last rituals/prayers in accordance with
Christian rites and customs. That apart, after four years, the remains of the body
will only be bones. Therefore, it is easy to exhume the remains of the body of
the petitioner's husband and it would not cause any health hazard issue. Further,
due to COVID-19, the petitioner's husband was not given a decent burial as
enshrined under Article 21 of the Constitution of India. The right to dignity and
fair treatment under Article 21 of the Constitution is not only available to a
living person but also to his body, after his death. This Court respects the
emotions and sentiments expressed by the petitioner as the wife of the deceased.
Therefore, the impugned order passed by the third respondent cannot be
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sustained and it is liable to be quashed.
9. Accordingly, the impugned order passed by the third respondent
dated 23.01.2024 is hereby quashed. The second respondent is directed to
permit the petitioner to exhume the body of the petitioner's husband viz.,
I.Austin, buried at Ambattur graveyard within the jurisdiction of the fourth
respondent zone and to rebury the remains of her husband at their native place
as per their rites in the family graveyard located at New S.Nos.599/24, 25 & 26
Vembadivillai, Kallukoottam Village, Kalkulam Taluk, Kanniyakumari District
within a period of two weeks from the date of receipt of a copy of this order on
condition that
(i) the exhumation will be done in the presence of the third and
fourth respondents at the cost of the petitioner ;
(ii) the remains of the body of the petitioner's husband shall be
taken to their native place in a sealed cover without causing any health hazard to
anybody immediately after exhumation ;
(iii) the exhumation of the petitioner's husband body shall be done
without causing any damage to the adjacent corpses ;
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(iv) the exhumation shall be done with the aid of police protection
to avoid law and order issue if any ;
(v) the fourth respondent shall ensure the correct graveyard of the
petitioner's husband to be opened with the assistance of the petitioner.
10. In the result, this writ petition stands allowed. No costs.
25.09.2024
Internet: Yes
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation : Yes/No
Lpp
G.K.ILANTHIRAIYAN. J,
Lpp
To
1. The Principal Secretary,
Health and Family Welfare Department,
Secretariat, Chennai – 600 009.
2. The Commissioner,
Greater Chennai Corporation,
Ripon Building,
Chennai – 600 003.
3. The Additional Health Officer,
https://www.mhc.tn.gov.in/judis
Greater Chennai Corporation,
General Health Department,
Ripon Buildings,
Chennai – 600 003.
4. The Zonal Officer,
Zone – 7, Chennai Corporation,
Ambattur, Chennai – 53.
5. The Deputy Director of Health Service,
(Public Health),
Krishnankoil @ Nagercoil,
Kanyakumari District.
Pre-delivery order in
25.09.2024
https://www.mhc.tn.gov.in/judis
