Madras High Court allows Hindu wife to perform customary rituals on death of Muslim husband but directs disposal of body as per Muslim rites

The Madras High Court recently permitted a Hindu woman and her daughter to perform the final rituals as per Hindus customs of her deceased Muslim husband [A Abdul Malik vs The District Collector]..However, it did not allow the disposal of the body as per Hindu rituals but instead permitted his second wife to dispose of his body as per Muslim rites since he had converted to Islam. In an order passed on February 19, single-judge Justice GR Swaminathan said the freedom guaranteed under Article 25 (right to religion) of the Constitution of India is such that it does not encroach upon a similar freedom of others. "Under the Constitutional Scheme, every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit this belief an ideas in a manner which does not infringe the religious right and personal freedom of others," the court observed in the order. The Court further said that the right to participate in the funeral ceremony of the parent or a spouse will fall within the sweep of the right under Article 25. It, therefore, held that the Hindu wife and daughter of the deceased man, being the legally wedded wife and legitimate daughter are entitled to offer their respects in the customary religious manner. "The authorities concerned are directed to hand over the body of the deceased to the Hindu wife and daughter so that they can perform certain customary religious ceremonies. But this has to be done within the premises of the hospital in the open ground and concluded within 30 minutes," the court ordered. .The case pertained to the death of a man who was a Hindu by birth. He was married to a woman as per Hindu rites in July 1988. The couple was blessed with a girl child. However, subsequently, the man had an affair with a Muslim woman and got married to her and got converted to Islam. After his death, the Hindu wife sought to perform the last rites of her husband. However, the Court noted that the husband had converted to Islam. The Court after considering the case before it said two issues are involved in the matter - one was the rights of the ones who are alive and the other the right of the one who is dead. Hence, it allowed the first wife to perform customary rituals as per Hinduism. However, the same cannot extend to the disposal of the body since the deceased was a Muslim, the Court said"I have consistently held that even dead persons are entitled to certain rights and that courts must have due regard to the same. While the first wife and daughter can discharge their fundamental rights under Article 25 that cannot extend to the disposal of the body of the deceased. It is beyond dispute that the deceased died a Muslim," the single-judge underscored. .Advocate I Sabeermohamed appeared for the Muslim-son. Advocate V Malaivendran appeared for the Hindu-wife. Special Government Pleader M Lingadurai along with Government Advocate A Albert James represented the State Authorities. .[Read Order]