Exhumation is not a matter of right and is generally prohibited based on public policy favoring the sanctity of the grave, unless required for forensic purposes or exceptional justice; furthermore, burial on private unregistered land is impermissible under local body laws.

ORDER

A “grave” issue has been brought forth for adjudication. The writ petitioner's husband / Nelson who passed away on 13.03.2023 was buried in the cemetery maintained by the St. Thomas Forane Church. It is not in dispute that the petitioner's husband was a member of the said church and that the burial was done as per the usual rites and customs. While so, the petitioner now wants to exhume her husband's bodily remains and re-bury the same in her own land.

2.The Church has filed a detailed counter-affidavit. The cemetery is located in S.No.302/1A and measures 33.7 cents approximately. It is said to be in existence for over 500 years. It is located very near the seashore. According to the Church, the cemetery has been divided into four partitions (four quarters). The bodies are being buried at the depth of five feet in alcoves formed by layering new sand over the old. Paragraph Nos.G, H, I and J of the counter affidavit read as follows:-

“g. There is a likelihood that the cemetery will be fully filled with sand after all four quarters are completed. The petitioner's husband is buried in the fourth quarter. It is expected

that filling in the remaining portions will take another two years. At present, burials are taking place in the second quarter.

h. By that time, the bodies in the first quarter will have disintegrated. A fresh layer of sand, five feet in height, will then be spread. When the first quarter is filled, care will be taken to ensure that no visible signs of the buried bodies on the surface present for the past year-are disturbed. The dates of death are duly recorded in the church registers.

i. Relatives of the deceased are permitted to maintain markers and perform religious observances for one year. After one year, the markers are removed. In our church, crosses are not placed at burial sites to conserve space.

j. Initially, a five-foot layer of sand was placed over the existing ground. When preparing burial pits, ditches of about five to six feet in depth are made. Each burial space accommodates a body within an area measuring approximately five feet in length and four feet in width. Over time, the sand will compact and settle, making it increasingly difficult to bury bodies unless additional sand is added. Therefore, regularly replenishing the sand has become essential. Announcement will be made in the church in connection with this.”

The learned counsel representing the church would contend that as per Canon Law, once a body is buried in the cemetery, normally it is not

allowed to be exhumed.

3.I carefully considered the petitioner's counsel's emotional plea for exhumation as well as the rival contention that there is no right as such.

4. This writ petition has been filed in the nature of a Writ of Mandamus. Only if the writ petitioner is able to show the existence of any legal right in her or a corresponding legal duty on the part of the respondents, relief sought for can be granted. The learned counsel appearing for the petitioner is unable to draw my attention to any statutory provision. However, reliance was placed on Anandhi Simon Vs. The State of Tamil Nadu (2021 (3) MLJ 479).

5. The dead have to be treated with dignity. The body will have to be buried or cremated in terms of the wishes of the deceased, if it can be ascertained. The immediate kin are entitled to dispose of the body in accordance with the tradition, culture and the religion which the deceased professed (vide Pt. Parmanand Katara Vs. Union of India

(1995) 3 SCC 248, Ramji Singh Vs. State of U.P. (2009) 5 ALL LJ 376).

6. While right to decent burial or cremation can be brought w