Full Judgment Text
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W.A.No.1090 of 2026 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MRS. JUSTICE PREETA A.K.
ST
THURSDAY, THE 21 DAY OF MAY 2026 / 31ST VAISAKHA, 1948
WA NO. 1090 OF 2026
AGAINST THE JUDGMENT DATED 10.04.2026 IN WP(C) NO.12792
OF 2026 OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 GREENY TOMY
AGED 61 YEARS
ANJILIKAL HOUSE, S.D.P.Y. ROAD,
PALLURUTHY P.O., ERNAKULAM, PIN - 682006.
2 FRANCIS K.T
AGED 65 YEARS
KANIYAMPURAM, PERUMPADAPPU, ELAMKUNNAPUZHA P.O.,
ERNAKULAM, PIN - 682503.
3 PHILOMINA
AGED 50 YEARS
253 EDATHIL HOUSE, E.M. SEBASTIAN ROAD,
PIZHALA P.O., ERNAKULAM, PIN - 682027.
BY ADVS.SRI.HAROON ASHRAF
SRI.K.T.SAJU
SRI.MOHAMMAD ISHAAQ
SRI.AMJATH T.H.
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, HOME DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
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W.A.No.1090 of 2026 2
2 STATION HOUSE OFFICER
NJARAKKAL POLICE STATION, ERNAKULAM RURAL,
PIN - 682505.
3 SUPERINTENDENT OF POLICE
ERNAKULAM RURAL, DISTRICT POLICE OFFICE,
ALUVA, ERNAKULAM, PIN - 683101.
4 THE SUPERINTENDENT
GOVERNMENT MEDICAL COLLEGE HOSPITAL,
KALAMASSERY, PIN - 683503.
5 THOMAS
MAPPASSERI HOUSE, OCHANTHURUTH,
KOCHI, PIN - 682508.
6 JANCY
PALLIPARAMBIL HOUSE, ELAMAKKARA,
KALOOR, COCHIN, PIN - 682026.
7 MARY JAIN
KANIYAMPURAM HOUSE, OCHANTHURUTH,
KOCHI, PIN - 682508.
8 JOSSIE K J
KANIYAMPURAM HOUSE, POONTHIRUTHIPARAMBA,
CHELAVOOR P.O., CHELAVUR, KOZHIKODE,
KERALA, PIN - 673571.
BY ADV.SRI.B.UNNIKRISHNA KAIMAL, SR.G.P.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.05.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.A.No.1090 of 2026 3
“CR”
JUDGMENT
PREETA A.K., J.
The appellants who are the petitioners in the Writ Petition are
challenging the judgment dated 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
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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 Section 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:
“In the instant case, Ext.R5(a), which has not been disputed, is
an unequivocal expression in writing of the deceased, during
her lifetime in the presence of two of her children, that her body
be used for educational purposes in Ernakulam Medical College.
Based on the said document, the Principal of the Medical
College has accepted the said body as well. Mere desire on the
part of the petitioners, who are also the children of the
deceased, cannot overcome the explicit expression of intention
of the deceased to handover her body after her death to Medical
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College. Further, there is nothing to doubt the credibility of the
expression of the desire of the deceased in Ext.R5(a). In this
context, it needs to be mentioned that, curiously, petitioners
have not arrayed Smt.Elizabeth, one of the daughters of the
deceased, whose name appears in Ext.R5(a) as a party and
instead, her husband has been arrayed as the fifth respondent.
Having regard to the totality of circumstances mentioned above,
the contentions of the petitioners lack merit.”
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
1
“Salmond on Jurisprudence” discussing the legal status of the dead
men has opined : “O rdinarily 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
th
1 See P.J.Fitzgerald (ed.), Salmond on Jurisprudence , (12 edn. 2010) p.301
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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.”
4. The fact that corpses are legally protected is therefore not
determinative of whether only the living are rights holders. The law
also strives to honour a deceased's wishes and to protect his interests
which is exemplified through the unconditional recognition of “will“ in
law. The right of a living person to decide on the fate of her body
remains a part of her posthumous bodily integrity. Though commonly
human beings desire a decent burial, it is also not uncommon that
human beings choose to render their body for anatomical studies as
part of their commitment to the society. That the law strives to honour
the wishes of the deceased and to protect her interests is exemplified
through the unconditional recognition of “will“ in law. This facet of the
right to posthumous bodily integrity can also be seen in legislations like
Transplantation of Human Organs Act, 1994, the Kerala Anatomy Act
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etc. Section 4A of the latter Act deals with instances where the dead-
body of a person who has expressed an unequivocal request during her
life-time for using the body after death for conducting anatomical
dissection, can be so used subject to the conditions in Section 4A. In
the instant case, Ext.R5(a) is a consent letter given by the deceased
mother which is under Section 4A of the Kerala Anatomy Act. In so far
as the appellants have not challenged the genuineness of Ext.R5(a), we
find no illegality in the act of donation of the body of the deceased by
respondents 5 to 7 to the Government Medical College, Kalamassery as
the same has been done to honour the wishes of the deceased as
expressed in Ext.R5(a).
In the result, we find ourselves in complete agreement with
the view taken by the learned Single Judge in the impugned judgment
and for the reasons stated in the said judgment, as supplemented by the
reasons in this judgment, this Writ Appeal is dismissed. No costs.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
PREETA A.K.
JUDGE
ami/