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2025 Supreme(Online)(Mad) 49902
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Mrs.Justice J. Nisha Banu, Mr.Jothiraman, JJ
The Commissioner, Greater Chennai Corporation – Appellant
Versus
S.Jaya – Respondent
W.A.No.3243 of 2024|W.P.No.10337 of 2024
For the Appellants/Petitioners:Mr.P.S.Raman Advocate General for Mrs.P.T.Ramadevi
For the Respondents: Mr.Ravikumar Paul Senior Counsel for Mr.P.Ebenezer Paul for R1, Mr.K.Tippusultan Special Government Pleader for R2 and R3
The right to a dignified burial includes adherence to religious practices, but exhumation is not favored unless justified by legal necessity and public health considerations.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 176(3) - Exhumation of buried body - Request by family for exhumation of deceased husband for reburial as per religious rites rejected by authorities - Writ Court quashed the order, allowing exhumation under specified conditions - Court emphasized rights under Article 21 including decent burial and religious customs, yet noted no special provision for exhumation exists beyond legal necessity. (Paras 5, 8, 16, 22)
Facts of the case:
The first respondent sought to exhume the body of her husband buried post-COVID in Ambattur to perform Christian rites at their family graveyard, which was denied by authorities citing lack of provision and health issues after more than four years. (Paras 2, 10)
Findings of Court:
The order of the writ Court allowing exhumation was quashed, citing that the body was treated with dignity and decent burial had occurred. The absence of earlier requests raised concerns regarding public health and order alongside the necessity of reburial. (Paras 22, 23)
Issues: Main issues included whether the refusal of exhumation was justifiable considering the constitutional right to a decent burial, and the authority of local bodies in decisions of this nature. (Paras 4, 10)
Ratio Decidendi: The right to dignity encompasses a proper burial according to religious rites, but disturbance of a buried body is not favored by law unless shown necessary. The case highlighted public health concerns and the importance of adhering to established procedures. (Paras 16, 18)
Result: Writ Appeal allowed; the Writ Court's order set aside. (Paras 23)
| Table of Content |
|---|
| 1. writ court quashes order for exhumation. (Para 3 , 4) |
| 2. arguments against exhumation based on law. (Para 5 , 6 , 7) |
| 3. arguments supporting the right to exhume. (Para 8 , 9) |
| 4. dignity of the deceased and right to burial. (Para 11 , 12 , 15) |
| 5. legal standards for exhumation established. (Para 18 , 19) |
| 6. conclusion on denying the writ appeal. (Para 22) |
JUDGMENT
(The Judgment of the Court delivered by Justice M . JOTHIRAMAN This Intra-Court Appeal is filed against the order dated 25.09.2024 passed in W.P.No.10337 of 2024 by this Court.
2. Before the writ Court, the first respondent/writ petitioner has challenged the order impugned passed by the Additional Health Officer, Greater Chennai Corporation, Chennai, dated 23.01.2024, thereby rejecting the request made by the writ petitioner seeking permission to exhume the body of her husband buried at Ambattur Corporation graveyard to rebury the body at his native place as per the protestant Christian rites.
3. The writ Court has quashed the order impugned in its order dated 25.09.2024 in W.P.No.10337 of 2024 and the relevant portion of the order is extracted hereunder:
“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;
(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.”
4. Feeling aggrieved by the said order, the Commissioner, Greater Chennai Corporation, the Additional Health Officer, Greater Chennai Corporation and the Zonal Officer, Chennai Corporation, Chennai, have preferred this Intra-Court Appeal.
5. The learned Advocate General appearing for the appellants would submit that there is no specific provision of law in India relating to the exhumation of the body except Section 176 (3) of Code of Criminal Procedure . The Hon'ble Supreme Court of India in the case of Mohammed Latief Magrey vs. The Union of J & K inC.A.No.6544 of 2022, held that once the body is buried after performing all the rituals and prayers as per the religious rites 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. The learned Additional Advocate General would further submit that the deceased, namely, I.Austin was buried in Ambattur Corporation Graveyard on 15.08.2020, and more than 5 years have passed post burial and it is suggested that if the exhumation process takes place, the body may not be in a deliverable state. He would submit that the first respondent/writ petitioner has approached the Appellants Corporation vide representation only on 12.01.2024 which is almost four years post burial of the deceased. The writ petitioner has never approached the appellants Corporation earlier with such contentions. The first respondent/writ petitioner has relied on the judgment of this Court in the case of Anandhi Simon vs. State of Tamil Nadu r
