The court affirmed the right to a decent burial under Article 21 of the Constitution, allowing exhumation for religious rites after confirming no health hazards from COVID-19 exist after four years.

ORDER :

1. 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.

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 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 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 wa