GREENY TOMY Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants who are the petitioners in the Writ Petition are challenging the judgment dtd. 10/04/2026 of the learned Single Judge whereby challenge against the retention and proposed use of the body of their deceased mother for anatomical purposes, was dismissed. The brief facts leading to the filing of the Writ Appeal is as follows : The appellants and respondents 6 to 8 are the Children of late Mary, wife of John who died on 23/02/2026. The fifth respondent is the son-in-law of the said Mary. The allegation in the Writ Petition was that respondents 5 to 7, without informing the appellants or obtaining their consent, took custody of the dead body of the deceased on the date of death, transported the dead body to Government Medical College Hospital, Kalamassery and represented before the hospital authorities that the body was being donated for medical purposes. Acting upon such representation, the hospital authorities received the body and shifted the same to the mortuary. The appellants who are also the legal heirs, thereupon, approached the statutory authorities and sought for the release of the body to perform the last rites and burial in accordance with their religious customs, as according to them, they had not given consent for donating the body. The appellants inter alia sought for a a writ of mandamus for directing respondents 4 and 5 to forthwith release the dead body of the petitioners' mother to the petitioners to enable them to conduct last rites and burial in accordance with their religious customs. The contesting respondents 5 to 7 filed a counter affidavit inter alia contending that the appellants and the eighth respondent were not on good terms with the deceased mother and father and that during their lifetime, they were looked after by their eldest daughter Elizabeth and her husband the fifth respondent herein. It was also contended that on account of the ruckus created by the second appellant and the eighth respondent at the time of the death of their father, the funeral had to be delayed and this had prompted their mother to execute a consent as envisaged under Sec. 4A of the Kerala Anatomy Act, 1957 to donate her body to the hospital and that the body was handed over to the Medical College, Kalamassery in accordance with the wishes of the deceased. The learned Single Judge after considering the rival contentions held as follows:

(2.) Heard the learned counsel for the appellants. It is contended by the appellants that in so far as the appellants, who are the legal heirs of the deceased, have not consented to handover the body for anatomical uses, they have a right to claim that the deceased should have a burial in accordance with their religious rites.

(3.) The right claimed by the appellants is a reflection of two competing rights the right to posthumous bodily integrity of the deceased and the right of the family to get a closure of the loss of their near and dear ones. The question whose rights a law protects is a question of who is its subject matter rather than its object; "for whom" the law is enacted rather than "in regard to" what. The locus classicus "Salmond on Jurisprudence" [See P.J.Fitzgerald (ed.), Salmond on Jurisprudence, (12th edn. 2010) p.301] discussing the legal status of the dead men has opined : "Ordinarily speaking, the personality of a human being may be said to commence existence on birth and cease to exist at death, and in general the law takes the same view.... Yet although all a man's rights and interests perish with him, he does when alive concern himself much with that which shall become of him and his after he is dead. And the law, without conferring rights upon the dead, does in some degree recognise and take account after a man's death of his desires and interests when alive. There are three things, more especially, in respect of which the anxieties of living men extend beyond the period of their deaths, in such sort that the law will take notice of them. These are a man's body, his reputation, and his estate. By a natural illusion a living man deems himself interested in the treatment to be awarded to his own dead body."