Grsj it is not possible for this Court to issue any decree of specific performance against the sixth respondents Certain functions cannot be ordered to be specifically performed. The case on hand is one such. The petitioner’s brother is said to be an ordained catholic priest. He himself can very well perform the necessary prayers in the place where the petitionerts wifels dead body is kept. Thereafter, the coffin can be straightaway taken to the cemetery attached to the sixth respondent church and buried thereo The petitioner as well as his brother can very well perform the prayers there and it will not be open to any person to stop the same. This is the minimum respect this Court can ensure for the dead person. I mandate the first and fourth respondents to ensure that the order of this Court is scrupulously carried out. It is their duty to ensure that the enforcement of this order is not prevented by any person. 9.The petitioner informs this Court that final rites will be carried out by him on 160122023 from 10000 am to 1200 noon. The petitioner undertakes before this Court that he will chose a spot in the church cemetery that will not be controversial 7/9 10.This writ petition is allowed on these terms. No costs. Assistant Registrar (CS-III) // True Copy / / ) ias leThe District Collector, Kanyakumari Districte 20The Revenue Divisional Officer, Nagercoil, Kanyakumario 30The Tahsildar, Agastheeswaram Tauk, Kanyakumariø 40The Superintendent of Police, Kanyakumari District.- .5.The Inspector of Police, Manavalakurichi Police Station, Kanyakumari Districts 6, The Additional Public Prosecutor, Madurai Bench of Madras High Court, Maduraie 8/9 of 2023 +5 CC to M/saNIRANJAN Sel
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.122023
CORAM
THE HONOURABLE MRJUSTICE GORSWAMINATHAN
of 2023
Jegan Petitioner
leThe District Collector,
Kanyakumari Districte
2.The Revenue Divisional Officer, Nagercoil, Kanyakumarie
3eThe Tahsildar, Agastheeswaram Tauk, Kanyakumaris
40The Superintendent of Police,
Kanyakumari Districte
50The Inspector of Police,
Manavalakurichi Police Station, Kanyakumari District.
6.Reve Fr. Jegan, Parish Priest,
Parish House,
Punitha Valanar Church,
Pillaithoppu, Azhikal,
Kanyakumari 629 202
of 2023
ZAntony,
Vice President,
Punitha Valanar Church,
Pillaithoppu, Azhikal,
Kanyakumari 629 2020 Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the Respondents herein to exhume and bury the petitioner!s wife in the cemetery belonging to the Punitha Valanar Church, Pillaithoppu with full customary rites along with appropriate action against the 6th and 7th Respondents for their inhumane acts,
For Petitioner MreNiranjan 5Kumar
For Respondents Mr.MeSidharthan,
Addle Government Pleader for RI to R3,
MmAAlbert James,
Govt. Advocate (Crl& Side) for R4 & R5e
ORDER
Heard the learned counsel for the writ petitioner, the learned Additional
Government Pleader for the respondents 1 to 3 and the learned Government Advocate (Crl. Side) for the respondents 4 and 5.
2The writ petitionerls wife / Revitha passed away on 14122023. The petitioner is a member of Punith Valanar Church, Pillaithoppu, Azhikal,
2/9
Kanyakumari Districte It appears that the petitioner!s brother-in-law is having some civil dispute with the sixth respondent, who is the parish prieste Citing this dispute, the sixth respondent had refused to perform the final rites and also permission to bury the dead body in the cemetery attached to the church premises.
3Xast evening, the learned counsel made a mention for emergent listing of this case, I permitted the learned counsel to move this case by way of lunch motion at
01.00 pm, I directed the learned counsel to inform the sixth respondents The learned counsel for the petitioner had sent WhatsApp message to the sixth respondent setting out the details. The learned Additional Government Pleader also informs this Court that the sixth respondent had been duly intimated about the listing of this case. However, the sixth respondent has not chosen to enter appearance.
4.VVhen the matter was taken up for hearing, the learned Additional Government Pleader submitted that the dead body had been buried in the patta land in S.No.455/2AO The petitioner is present in person I wanted to know if the said assertion is true.
3/9
WEMPINQ23QQ5a_Qt2P23
50The learned counsel for the petitioner submitted that since the sixth respondent has refused to extend his cooperation, under police escort the dead body was taken to the neighbouring church. There also permission was refused. The petitioner was told that unless the issue involving the sixth respondent is amicably settled, it is not possible to permit burial of the body in the church cemetery. Therefore, the dead body was brought back by the petitioner. The petitioner also stated that he was coerced by the administration to bury the body in the patta land,
6.The Hon!ble Full Bench in the decision reported 2023 (4) CTC 481 (Jagadheeswari v; BBÆbtt Naidu) had held that a dead body can be buried or cremated only in a notified cremation ground or burial grounda Admittedly, SNoe455/2A is not a notified burial ground. Therefore, the case put forth by the petitioner stands probabilized. The learned counsel went on to state that only by way of adhoc arrangement, burial was made. In any event, the petitioner as a believer and practicing Christian is entitled to bury his wife’s dead body as per
Christian rites and customs,
7Olt is well settled that right of dignity is extended even to dead personse The
4/9
0 3
sixth respondent cannot refuse burial in this case That would be both illegal and unconstitutional. Article 25 of the Constitution of India will definitely come into playe The Hon*ble Supreme Court in the decision reported in 1989 Supp (1) SCC 251 (Ramsharan Autyanuprasi u Union of India) had held that a deceased person has a right to a decent burial and cremation and that right to dignity under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death, The Honible Kerala High Court in the decision reported in 2016 SCC
OnLine Ker 30218 (MR. Sasidharan v, State of Kerala) held as follows:-
“Ile It is also relevant in this context to note some of the case laws on the subjecte This Court in the ruling in Vareed Porinchukutty v. State of Kerala reported in 1971 KLT 204 has held that practices which are regarded by the community as part of its religion are also matters of religion and that among most of the Hindus disposal of the dead is effected by cremation, but among Muslims„ Jews and Christians, it is done by burial and right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice of certain religions. That among Christians, while rites at the time of burial consists in services expressed in words, ceremonies consist in gestures or acts preceding, accompanying or following those words and that Catholics believe in the immortality of the soul and resurrection of the body and the practice of burying dead bodies with certain rites and ceremonies is an integral part of the faith and in burying dead bodies in consecrated places,
5/9
they only exercise their fundamental right under Article 25 of the Constitution of India regarding practice of religion. It may be pertinent to refer to Paragraph 22 of the said ruling reported in 1971 KLT 204, which reads as follows:
“22 Practices which are regarded by the community as part of its religion are also matters of religion. Among most of the Hindus disposal of the dead is effected by cremation but among Muslims, Jews and Christians it is done by burials Right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice of certain religionso Among Christians while rites at the time of burial consist in services expressed in words ceremonies consist in gestures or acts preceding, accompanying or following those words, Catholics, it is admitted that members of the A Party are Catholics, believe in the immortality ofthe soul and resurrection of the The practice Of burying dead bodies With certain rites and ceremonies is an integral part of the Catholic faiths In burying dead bodies in consecrated places they only exercise their fundamental right regarding practice of religions ”
18, The Madras High in the case So Sethu Raja vo Chief Secretary, Govt. of Tamil Nadu reported in (2007) 5 ML] 404, has held in para 18 that by our tradition and culture, the same human dignity (if not more) with which a living human being is expected to be treated, should also be extended to a person, who is dead and the right to accord a decent burial or cremation to the dead body of a person, should be taken to be a part of the right to such human dignity. ”
6/9
8At the same time, it is not possible for this Court to issue any decree of specific performance against the sixth respondents Certain functions cannot be ordered to be specifically performed. The case on hand is one such. The petitioner’s brother is said to be an ordained catholic priest. He himself can very well perform the necessary prayers in the place where the petitionerts wifels dead body is kept. Thereafter, the coffin can be straightaway taken to the cemetery attached to the sixth respondent church and buried thereo The petitioner as well as his brother can very well perform the prayers there and it will not be open to any person to stop the same. This is the minimum respect this Court can ensure for the dead person. I mandate the first and fourth respondents to ensure that the order of this Court is scrupulously carried out. It is their duty to ensure that the enforcement of this order is not prevented by any person.
9.The petitioner informs this Court that final rites will be carried out by him on 160122023 from 10000 am to 1200 noon. The petitioner undertakes before this Court that he will chose a spot in the church cemetery that will not be controversial
7/9
10.This writ petition is allowed on these terms. No costs.
Assistant Registrar (CS-III) // True Copy / /
) ias
leThe District Collector,
Kanyakumari Districte
20The Revenue Divisional Officer,
Nagercoil, Kanyakumario
30The Tahsildar,
Agastheeswaram Tauk, Kanyakumariø
40The Superintendent of Police,
Kanyakumari District.-
.5.The Inspector of Police,
Manavalakurichi Police Station, Kanyakumari Districts
6, The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Maduraie
8/9
of 2023
+5 CC to M/saNIRANJAN Sel
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.122023
CORAM
THE HONOURABLE MRJUSTICE GORSWAMINATHAN
of 2023
Jegan Petitioner
leThe District Collector,
Kanyakumari Districte
2.The Revenue Divisional Officer, Nagercoil, Kanyakumarie
3eThe Tahsildar, Agastheeswaram Tauk, Kanyakumaris
40The Superintendent of Police,
Kanyakumari Districte
50The Inspector of Police,
Manavalakurichi Police Station, Kanyakumari District.
6.Reve Fr. Jegan, Parish Priest,
Parish House,
Punitha Valanar Church,
Pillaithoppu, Azhikal,
Kanyakumari 629 202
of 2023
ZAntony,
Vice President,
Punitha Valanar Church,
Pillaithoppu, Azhikal,
Kanyakumari 629 2020 Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the Respondents herein to exhume and bury the petitioner!s wife in the cemetery belonging to the Punitha Valanar Church, Pillaithoppu with full customary rites along with appropriate action against the 6th and 7th Respondents for their inhumane acts,
For Petitioner MreNiranjan 5Kumar
For Respondents Mr.MeSidharthan,
Addle Government Pleader for RI to R3,
MmAAlbert James,
Govt. Advocate (Crl& Side) for R4 & R5e
ORDER
Heard the learned counsel for the writ petitioner, the learned Additional
Government Pleader for the respondents 1 to 3 and the learned Government Advocate (Crl. Side) for the respondents 4 and 5.
2The writ petitionerls wife / Revitha passed away on 14122023. The petitioner is a member of Punith Valanar Church, Pillaithoppu, Azhikal,
2/9
Kanyakumari Districte It appears that the petitioner!s brother-in-law is having some civil dispute with the sixth respondent, who is the parish prieste Citing this dispute, the sixth respondent had refused to perform the final rites and also permission to bury the dead body in the cemetery attached to the church premises.
3Xast evening, the learned counsel made a mention for emergent listing of this case, I permitted the learned counsel to move this case by way of lunch motion at
01.00 pm, I directed the learned counsel to inform the sixth respondents The learned counsel for the petitioner had sent WhatsApp message to the sixth respondent setting out the details. The learned Additional Government Pleader also informs this Court that the sixth respondent had been duly intimated about the listing of this case. However, the sixth respondent has not chosen to enter appearance.
4.VVhen the matter was taken up for hearing, the learned Additional Government Pleader submitted that the dead body had been buried in the patta land in S.No.455/2AO The petitioner is present in person I wanted to know if the said assertion is true.
3/9
WEMPINQ23QQ5a_Qt2P23
50The learned counsel for the petitioner submitted that since the sixth respondent has refused to extend his cooperation, under police escort the dead body was taken to the neighbouring church. There also permission was refused. The petitioner was told that unless the issue involving the sixth respondent is amicably settled, it is not possible to permit burial of the body in the church cemetery. Therefore, the dead body was brought back by the petitioner. The petitioner also stated that he was coerced by the administration to bury the body in the patta land,
6.The Hon!ble Full Bench in the decision reported 2023 (4) CTC 481 (Jagadheeswari v; BBÆbtt Naidu) had held that a dead body can be buried or cremated only in a notified cremation ground or burial grounda Admittedly, SNoe455/2A is not a notified burial ground. Therefore, the case put forth by the petitioner stands probabilized. The learned counsel went on to state that only by way of adhoc arrangement, burial was made. In any event, the petitioner as a believer and practicing Christian is entitled to bury his wife’s dead body as per
Christian rites and customs,
7Olt is well settled that right of dignity is extended even to dead personse The
4/9
0 3
sixth respondent cannot refuse burial in this case That would be both illegal and unconstitutional. Article 25 of the Constitution of India will definitely come into playe The Hon*ble Supreme Court in the decision reported in 1989 Supp (1) SCC 251 (Ramsharan Autyanuprasi u Union of India) had held that a deceased person has a right to a decent burial and cremation and that right to dignity under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death, The Honible Kerala High Court in the decision reported in 2016 SCC
OnLine Ker 30218 (MR. Sasidharan v, State of Kerala) held as follows:-
“Ile It is also relevant in this context to note some of the case laws on the subjecte This Court in the ruling in Vareed Porinchukutty v. State of Kerala reported in 1971 KLT 204 has held that practices which are regarded by the community as part of its religion are also matters of religion and that among most of the Hindus disposal of the dead is effected by cremation, but among Muslims„ Jews and Christians, it is done by burial and right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice of certain religions. That among Christians, while rites at the time of burial consists in services expressed in words, ceremonies consist in gestures or acts preceding, accompanying or following those words and that Catholics believe in the immortality of the soul and resurrection of the body and the practice of burying dead bodies with certain rites and ceremonies is an integral part of the faith and in burying dead bodies in consecrated places,
5/9
they only exercise their fundamental right under Article 25 of the Constitution of India regarding practice of religion. It may be pertinent to refer to Paragraph 22 of the said ruling reported in 1971 KLT 204, which reads as follows:
“22 Practices which are regarded by the community as part of its religion are also matters of religion. Among most of the Hindus disposal of the dead is effected by cremation but among Muslims, Jews and Christians it is done by burials Right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice of certain religionso Among Christians while rites at the time of burial consist in services expressed in words ceremonies consist in gestures or acts preceding, accompanying or following those words, Catholics, it is admitted that members of the A Party are Catholics, believe in the immortality ofthe soul and resurrection of the The practice Of burying dead bodies With certain rites and ceremonies is an integral part of the Catholic faiths In burying dead bodies in consecrated places they only exercise their fundamental right regarding practice of religions ”
18, The Madras High in the case So Sethu Raja vo Chief Secretary, Govt. of Tamil Nadu reported in (2007) 5 ML] 404, has held in para 18 that by our tradition and culture, the same human dignity (if not more) with which a living human being is expected to be treated, should also be extended to a person, who is dead and the right to accord a decent burial or cremation to the dead body of a person, should be taken to be a part of the right to such human dignity. ”
6/9
8At the same time, it is not possible for this Court to issue any decree of specific performance against the sixth respondents Certain functions cannot be ordered to be specifically performed. The case on hand is one such. The petitioner’s brother is said to be an ordained catholic priest. He himself can very well perform the necessary prayers in the place where the petitionerts wifels dead body is kept. Thereafter, the coffin can be straightaway taken to the cemetery attached to the sixth respondent church and buried thereo The petitioner as well as his brother can very well perform the prayers there and it will not be open to any person to stop the same. This is the minimum respect this Court can ensure for the dead person. I mandate the first and fourth respondents to ensure that the order of this Court is scrupulously carried out. It is their duty to ensure that the enforcement of this order is not prevented by any person.
9.The petitioner informs this Court that final rites will be carried out by him on 160122023 from 10000 am to 1200 noon. The petitioner undertakes before this Court that he will chose a spot in the church cemetery that will not be controversial
7/9
10.This writ petition is allowed on these terms. No costs.
Assistant Registrar (CS-III) // True Copy / /
) ias
leThe District Collector,
Kanyakumari Districte
20The Revenue Divisional Officer,
Nagercoil, Kanyakumario
30The Tahsildar,
Agastheeswaram Tauk, Kanyakumariø
40The Superintendent of Police,
Kanyakumari District.-
.5.The Inspector of Police,
Manavalakurichi Police Station, Kanyakumari Districts
6, The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Maduraie
8/9
of 2023
+5 CC to M/saNIRANJAN Sel
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