Refusal To Remove Mortal Remains From Stranger's Property Akin To Abandonment Of Body, Kerala Rules On Burial Of Unclaimed Corpses Can Be Invoked: High Court

The Kerala High Court has stated that a burial in a stranger's property without their express consent can be construed as an abandonment of that body and thereby, the Kerala Panchayat Raj (Burial of Unclaimed Corpses and Carcasses) Rules, 1996 can be invoked in such cases.

“In my opinion, by his refusal to remove the corpse even after it becoming evident that the body was buried in a stranger's property, the son had virtually abandoned the body of his mother, making it akin to an unclaimed corpse” observed Justice VG Arun.

The petitioner in the first petition filed the plea challenging an order of the trial court where they had directed him to exhume the body of his mother as it had been buried in the land lying contiguous to his ancestral property. The second plea was filed by the neighbour seeking an enforcement of the direction issued by the trial court. The counsel for the second petitioner argued that no person has the right to bury in another person's property without express consent and as such, the body is liable to be removed.

The counsel for the first petitioner rejected the contention and submitted that the Kerala Panchayat Raj (Burial of Unclaimed Corpses and Carcasses) Rules, 1996 ('the Rules' for short) is not applicable to this case as the statute is only applicable in the case of unclaimed corpses. As such, the counsel argued that the trial court could not have directed the Panchayat to get the body exhumed and buried in accordance with the rules.

The court pointed out that the first petitioner had informed the trial court of his willingness to either exhume the body or come to a settlement with the owner of the adjacent property if that area was found to belong to the neighbour.

The court reasoned that as the son had retracted his assurance to the court following the demarcation of the property, it can be construed as the abandonment of the body in a stranger's property. The court added that a disinterment is justified if the owner's faith does not permit such burial.

“The fact that the dead body of the old lady was buried in a stranger's property, whose religion, faith and custom does not permit such burial, is good enough reason for ordering disinterment” concluded Justice VG Arun.

Counsel for Petitioner: Advocate TA Kathirukunji (WP(C) No. 33292 of 2022) and Advocates Sherry J Thomas, Joemon Antony, Antony Nilton Remelo and Renish Raveendran (WP(C) No. 37339 of 2022)

Counsel for Respondents: Advocate TK Ajithkumar

Case Citation: 2024 LiveLaw (Ker) 197

Case Title: Rajesh v. Sub-Divisional Magistrate, Fort Kochi and ors

Case Number: WP(C) No. 33292 of 2022 and WP(C) No. 37339 of 2022

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