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2018 DIGILAW 332 (KER)

Abdul Majeed President v. District Collector, Civil Station, Thrissur 680 001

2018-04-12

SHAJI P.CHALY

body2018
JUDGMENT : The captioned writ petitions are materially connected in respect of release of body of deceased E.C. Simon Master, donated by his wife and children to the Government Medical College Hospital, Thrissur, to the petitioners or the 11th respondent for burial in accordance with the Islamic rights and practices. Since the writ petitions are materially connected and the relief sought for are typical in nature, I propose to deliver a common judgment. The facts recited in W.P.(C) No.4674 of 2018 are relied upon in order to dispose of the writ petitions. The decision taken in this writ petition will apply to the other writ petition also. 2. Petitioners are friends of E.C. Simon Master @ E.C. Muhammed Haji, who passed away on 27.01.2018. Eleventh respondent therein is the Juma'ath. According to the petitioners, Simon Master was a Muslim and had expressed his desire to the petitioners that his mortal remains is to be buried according to Islamic religious practice in the graveyard of the 11th respondent. It is also stated that, late Simon Master has expressed his desire in writing as per Ext.P4 on 08.09.2000 to do so, in which his children have signed as witnesses, which document is produced as Ext.P1 in the connected writ petition. Simon Master died on 27.01.2018 while undergoing treatment in a hospital, at the age of 87 years. The wife and children of Simon Master have taken his body to Government Medical College Hospital, Thrissur and donated the body to the hospital for educational purpose of the students of the said institution. It is also stated that, it is done accordingly on the basis of Ext.P8 wish expressed by him in writing in a 100 Rs. stamp paper, wherein also, the wife and children of Simon Master are witnesses. 3. According to the petitioners, Ext.P8 is a concocted document, since Simon Master has expressed his wish already as per Ext.P1 document in the connected writ petition, to bury the body in accordance with the Islamic rites, as early as on 08.09.2000. Other circumstances are also put forth by the petitioners to point out that Simon Master lived as a Muslim and he has written various articles with respect to the religious practices in Muslim community and his experiences, which are produced as Exts.P1 and P2 alleged to be reported in different journals/publications. 4. Other circumstances are also put forth by the petitioners to point out that Simon Master lived as a Muslim and he has written various articles with respect to the religious practices in Muslim community and his experiences, which are produced as Exts.P1 and P2 alleged to be reported in different journals/publications. 4. Respondents 6 to 10, legal heirs of the deceased, have filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioners in the writ petition, and along with the same, material documents are produced like death certificate, Aadhar Card, Ration Card, Resident Identity Card and Electoral Identity Card issued by the Government of India, Body Donor Identity Card issued by the Department of Anatomy, Medical College, Thrissur, wherefrom it is evident that the name of deceased person is shown as 'E.C. Simon'. 5. Ext.R6(b) Aadhar Card is issued by the Government of India in the name of 'Simon E.C.', which is dated 13.11.2013. In the Ration Card, the name is shown as 'Simon'. In Ext.R6(d) Resident Identity Card issued by the Government of India, name is shown as 'Saiman I.C.' and in Ext.R6(f) PAN card issued by the Income Tax Department, name is shown as 'SIMON E.C.' 6. According to respondents 6 to 10, throughout the life the deceased lived with the respondents. The contention raised by the petitioners in the writ petition that they were frequent visitors to the house of the deceased, and used to interact with him in religious matters etc. etc. are all denied. The said respondents have also denied the statement that the deceased used to pray five times a day and used to pray in Friday congregations regularly. Other contentions with respect to the duty allegedly carried out by the deceased in the Juma'at are all denied. It is also stated that, the body was handed over to the Medical College in accordance with the desire expressed by Simon Master as per Ext.R6(g), similar to Ext.P8. It is also the case of the respondents that, till the last breath, Simon Master was residing with them and they were looking after Simon Master in the hospital and all throughout he had the wish to donate the body to Medical College Hospital. 7. It is also the case of the respondents that, till the last breath, Simon Master was residing with them and they were looking after Simon Master in the hospital and all throughout he had the wish to donate the body to Medical College Hospital. 7. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition and produced Ext.P9 document to show that Simon Master had given a video interview to one Aslam Kongad of “Skeen On Channel”. It is also the case of the petitioners that the signature contained in Ext.P8 differs from Ext.P1 in the connected writ petition, and therefore, there is every likelihood of fabrication of Ext.P8 document by the children of Simon Master. 8. I have heard learned counsel appearing for the petitioners in the writ petitions, learned Government Pleader and the learned counsel appearing for the party respondents in both the writ petitions. Perused the documents on record and the pleadings put forth by the respective parties. 9. The respective counsels have addressed their arguments in accordance with the pleadings contained in the writ petitions and the counter affidavits filed by the respondents. The subject issue of donating the body is covered by the provisions of Kerala Anatomy Act, 1957. Section 4A deals with taking possession of dead bodies with the prior consent of deceased persons, which is introduced into the Act as per the Amendment Act, 1964, which read thus: “4A. Taking possession of dead bodies with the prior consent of deceased persons.- (1) If any person, either in writing at any time or orally in the presence of two or more persons during his last illness, has expressed an unequivocal request that his body be used for the purpose of conducting anatomical examination and dissection after his death the party lawfully in possession of his body after his death, may, unless, the said party has reason to believe that the request was subsequently withdrawn, report the fact to the authorised officer and permit the said officer to take possession of the body and hand it over to the authority in charge of a teaching medical institution if it is required by that authority. (2) Without prejudice to sub-section (1), the party lawfully in possession of the body of a deceased person may permit the authorised officer to take over possession of the body for the purposes aforesaid unless that party has reason to believe- (a) that the deceased had expressed an objection to his body being so dealt with after his death, and had not withdrawn it; or (b) that the surviving spouse or any near relative of the deceased objects to the body of the deceased being so dealt with. (3) When there is any doubt regarding the cause of death or when for any reason the authorised officer considers it expedient so to do, he shall forward the dead body to the police officer referred to in section 174 of the Code of Criminal Procedure, 1898. (4) Where any dead body taken possession of by the authorised officer under this section is not required by the authority in charge of a teaching medical institution, it shall be returned to the party who was lawfully in possession of the body after death. (5) No permission shall be given under this section in respect of the body of a deceased person by any person who has been entrusted with the body solely for the purpose of its interment, burial, cremation or disposal otherwise.” 10. Therefore, in accordance with the stipulations contained under Sec.4A(1), if any person, either in writing at any time or orally in the presence of two or more persons during his last illness, has expressed an unequivocal request that his body be used for the purpose of conducting anatomical examination and dissection after his death, the party lawful in possession of his body, after his death, unless the said party has reason to believe that the request was subsequently withdrawn, report the fact to the authorised officer and permit the said officer to take possession of the body and hand it over to the authority in charge of a teaching institution, if it is required by that authority. 11. Therefore, taking into account the factual circumstances of the case, it is evident that Simon Master, who was aged 87 years at the time of his death was undergoing treatment in a hospital, which is an admitted fact. There is no dispute with respect to the aspect that his wife and children were looking after the deceased person. 11. Therefore, taking into account the factual circumstances of the case, it is evident that Simon Master, who was aged 87 years at the time of his death was undergoing treatment in a hospital, which is an admitted fact. There is no dispute with respect to the aspect that his wife and children were looking after the deceased person. Ext.P8 produced by the petitioners shows that Simon Master has expressed his desire to donate his body to Medical College Hospital for the purpose of education of the students. Ext.P8 is dated 09.12.2017. The witnesses thereunder are wife and children of Simon Master. In Ext.P1 produced along with W.P.(C) No.3902 of 2018, akin to Ext.P4 in the connected writ petition, also the children are the witnesses. There is no dispute for the children that Ext.P1 is not signed by Simon Master. However, the case of the party respondents is that, Simon Master has later expressed his last wish and desire as per Ext.P8 and otherwise to donate the body to the Medical College. So also, party respondents have relied upon the documents produced along with the counter affidavit, wherein, it is evident that, in several authoritative Government documents also, the name of the deceased person is shown as Simon E.C., Siman I.C., Simon etc. etc. Some of the documents are issued after the execution of Ext.P1 desire of Simon Master in the year 2000. 12. Taking into account the entire aspects of the matter and considering the arguments advanced across the Bar by the respective counsel, and reckoning the provisions of law, I am of the considered opinion that, there are no materials produced by the petitioners before this Court to establish that Ext.P8 document is not executed by Simon Master. Even though the petitioners are disputing the signature in Ext.P8, they have not taken any steps to establish the said circumstances pointed out by them. On a bare appreciation of the signature contained in Exts.P1 and P8, I am also of the opinion that they are materially similar in nature. Petitioners have also advanced an argument that the Medical College has received the body without carrying out any enquiry contemplated under Sec.4A of Act, 1957. On a bare appreciation of the signature contained in Exts.P1 and P8, I am also of the opinion that they are materially similar in nature. Petitioners have also advanced an argument that the Medical College has received the body without carrying out any enquiry contemplated under Sec.4A of Act, 1957. As is noticeable, the body was handed over by the wife and children of the deceased person and I have no reason to think that necessary enquiry as is contemplated under the Act is not conducted by the Medical College authorities. 13. Above all, when wife and children are producing the body and when they convey that it was according to the last wish of the deceased, the body is donated, that by itself satisfies the requirement contained under Sec.4A of the Act. Moreover, merely because the deceased has written certain articles with respect to Islamic teachings etc., that by itself is not a conclusive document to substantiate the case of the petitioners. So also, the receipt of the body by the statutory authority can be presumed to be in accordance with law, since it is an official act. Therefore, it is for the petitioners to prove otherwise. There is no proof convincing and significant produced by the petitioners to hold otherwise. 14. The legal and factual circumstances pointed out above lead me to the irresistible conclusion that petitioners have not made out any case justifying interference of this Court under Article 226 of the Constitution of India, there being no illegality, arbitrariness or malafides on the part of the authority of the Medical College in receiving the body of the deceased in accordance with the desire expressed by the deceased person, handed over by the wife and children and conveyed accordingly. The writ petitions fail, accordingly they are dismissed.