Allowed

Ms Merlyn Mirabel Rozario v. State of Karnataka

Karnataka HC22 Nov 2024WP/17886/2024

Case brief

AI extract

What is this about?

The court allowed a writ petition quashing the rejection of permission to exhume the petitioners' mother's remains. Distinguishing a Supreme Court precedent on lack of specific burial evidence, the High Court held that pandemic restrictions and last wishes constituted exceptional circumstances, directing the Deputy Commissioner to grant permission for exhumation and reburial.

What did the court decide?

The petition was allowed; the rejection order quashed; the Deputy Commissioner directed to grant permission for exhumation and reburial at the petitioner's expense.

Ms Merlyn Mirabel Rozario Vs State of… — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:47808 WP No. 17886 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR WRIT PETITION NO. 17886 OF 2024 (GM-RES)

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BETWEEN:

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MS. MERLYN MIRABEL ROZARIO D/O LATE JANET YUVONE SEQUERIA, AGED ABOUT 38 YEARS, R/A VENSA LAKE VIEW APARTMENT AMRUTAHALLI, BANGALORE 560 092

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MS. MURIEL MIRACLE

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

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D/O LATE JANET YUVONE SEQUERIA, AGED ABOUT 38 YEARS, REP BY HER POA HOLDER MRS. AGNES OLIVIA SEQUERIA W/O LATE CHRISTOPHER ROZARIO, AGED ABOUT 65 YEARS, R/AT NO.9/180 KURUBARAHALLI MAHALAKSHMIPURAM POST, SARVODAYA SCHOOL OF NURSING, KURUBARAHALLI, BANGALORE 560 086

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…PETITIONERS

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(BY SRI. VIDYA SELVAMONY, ADVOCATE)

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AND:

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STATE OF KARNATAKA REP. BY ITS CHIEF SECRETARY, 2^ND FLOOR VIKASA SOUDHA, DR. B.R. AMBEDKAR VEEDHI, BENGALURU 560 001

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2 - NC: 2024:KHC:47808 WP No. 17886 of 2024

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THE DEPUTY COMMISSIONER BENGALURU URBAN KEMPEGOWDA ROAD, BEHIND KANDAYA BHAVANA, BENGALURU URBAN DISTRICT, BENGALURU 560 009

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THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB DIVISION, NO.200(N), 2^ND FLOOR, KEMPEGOWDA ROAD, KANDAYA BHAVANA, BENGALURU URBAN DISTRICT, BENGALURU 560 009.

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THE TAHSILDAR BENGALURU EAST TALUK 2M3R PLUS WR5, DIESEL LOCO SHED ROAD, DURAVANI NAGAR, KRISHNARAJAPURA, BENGALURU 560 036

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…RESPONDENTS

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(BY SRI. ARUNA G.S., HCGP)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE LETTER DATED 30.10.2023 ON R-2 VIDE ANNEXURE-A BEARING NO. MAG (4) MISS/C.R 153/23-24 R-2 TO GRANT PERMISSION TO EXHUME THE MORTAL REMAINS OF THEIR MOTHER AND TRANSPORT IT TO SOMWARPET COORG FOR THE LAST RELIGIOUS RITES AND RE BURIAL OF HER REMAINS AS PER REPRESENTATION MADE BY THE PETITIONER VIDE ANNEXURE-A1 DATED 11.01.24 AWARD COSTS AND LITIGATION EXPENSES

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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NC: 2024:KHC:47808 WP No. 17886 of 2024

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ORAL ORDER

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The petitioners’ mother, who was residing and working in Bengaluru, passed away due to a liver ailment on 30.05.2021 during the COVID-19 pandemic. Due to restrictions on the transportation of deceased bodies at the time, the body was buried at Kodathi St. Anthony’s Church located on Sarjapura Road, Carmelaram, Bengaluru. The deceased, however, originally belonged to Somwarpet in Kodagu District.

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Subsequently, the petitioners submitted an application/representation to Respondent No. 3, seeking permission to exhume the body of their mother and relocate it at the cemetery of Lady of Victories Church in Somwarpet, Coorg District, in accordance with her last wishes. Respondent No. 3 rejected the application/representation, prompting the petitioners to approach this Court for relief.

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The learned Additional Government Advocate, representing the respondents, argued that the exhumation of the buried body for religious purposes is not permissible and that the rejection of the petitioners’ request was valid. It was contended that the petitioners’ request does not fall under any of the grounds enumerated in Section 176(3) of the Code of Criminal Procedure (Cr.P.C.), which governs the circumstances under which exhumation may be permitted.

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The learned counsel for the petitioners, however, contended that their request is based on exceptional and special

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4 - NC: 2024:KHC:47808 WP No. 17886 of 2024

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circumstances, namely, that their mother’s burial was conducted during the pandemic under unavoidable restrictions, and her last wish was to be buried at the family’s ancestral burial ground in Somwarpet. The learned counsel further submitted that the family traditionally performs religious rites and prayers at the ancestral cemetery, and the inability to do so in Bengaluru has caused them significant distress. It was also argued that the rites and rituals accompanying the burial were not duly performed at the time of interment in Bengaluru.

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The arguments presented by the learned counsel for the parties are considered .

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The Supreme Court in Mohammad Latief Magrey v. Union Territory of Jammu and Kashmir & Others, reported in 2022 SCC OnLine SC 1203 , dealt with the issue of exhumation of a deceased body. The Apex Court observed that India lacks specific legislation on exhumation, except for the provisions under Section 176(3) of the Cr.P.C., which grants certain powers to a magistrate in cases requiring an inquest. The Apex Court also referred to similar observations made by the Madras High Court in Anandhi Simon v. The State of Tamil Nadu, reported in (2021) 3 Mad LJ 479, and noted that very few countries have dedicated legislation on exhumation. The Apex Court cited Ireland’s Local Government (Sanitary Services) Act, 1948, as amended by subsequent legislation, as an example of such a framework and recommended that the Union of India consider enacting

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5 - NC: 2024:KHC:47808 WP No. 17886 of 2024

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appropriate legislation on exhumation to address situations like the one at hand.

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In the Mohammad Latief Magrey case, the Supreme Court ultimately declined permission for exhumation, noting that there was no evidence to suggest that the deceased had been denied a decent burial or that the necessary prayers and rituals were not performed at the time of burial.

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In the present case, the petitioners argue that their mother’s burial at Kodathi St. Anthony’s Church was necessitated by pandemic-related travel restrictions, and they now seek to honor her last wish of being buried at their ancestral cemetery in Somwarpet. The petitioners also emphasize that the family traditionally performs periodic religious rites at the ancestral cemetery and is unable to continue these practices at the burial site in Bengaluru.

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The petitioners further submit that the burial at Bengaluru was not conducted in accordance with the necessary religious rites and rituals. Unlike in the Mohammad Latief Magrey case, where the Apex Court found no evidence of a lack of a decent burial, the present case is centered on the fulfillment of the deceased’s last wishes and the continuation of traditional familial practices, which the petitioners argue to constitute exceptional and special circumstances.

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In light of the legal principles established in Mohammad Latief Magrey v. Union Territory of Jammu and

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NC: 2024:KHC:47808 WP No. 17886 of 2024

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Kashmir & Others (2022 SCC OnLine SC 1203), the petitioners have established a prima facie case that exhumation may be permitted in exceptional and special circumstances. Given the unique facts of this case, the petitioners are entitled to the relief sought. Accordingly, the body of the petitioners’ mother may be exhumed and transported to the ancestral burial ground at Lady of Victories Church, Somwarpet, for the performance of the last religious rites and reburial.

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Accordingly, I pass the following:

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ORDER

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i) The petition is allowed.

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ii) The impugned communication dated 30.10.2023 issued by the respondent No.2 is hereby quashed.

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iii) Respondent No. 2 is hereby directed to grant permission to the petitioners to exhume the mortal remains of their deceased mother in the presence of the concerned officials and a representative of the Church, at the petitioners’ expense. Respondent No. 2 shall issue the necessary permission within two weeks from the date of receipt of a copy of this order.

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iv) Upon exhumation, the petitioners shall transport the mortal remains of their mother to Somwarpet, Coorg, for the performance of the last religious rites and reburial at the Lady of Victories Church.

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Sd/(HEMANT CHANDANGOUDAR) JUDGE

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BKM/AV/RKA

Ms Merlyn Mirabel Rozario v. State of Karnataka

Case brief

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Ms Merlyn Mirabel Rozario v. State of Karnataka

Case brief

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