Exhuming the Body of My Dead Sister
Question: My sister, who was a 4-year-old child was buried in a coffin in a non-Muslim cemetery in Australia decades ago. Is it permissible to exhume her body and relocate her to a Muslim cemetery?
Answer: The full burial rights of a human being are provided to them at the period of ensoulment. The popular opinion amongst Muslim jurists is that ensoulment occurs at the age of 120 days after conception (while still a fetus). Therefore, even in the case of a miscarriage after ensoulment, the fetus would need to be given a ghusl and buried in accordance to Islamic law. Hence, the four-year old has to be buried in accordance to these laws.
The exhumation of any person is considered disrespectful to the deceased and causes much horror and emotional pain for those who loved him. Therefore, in Islam, the principle ruling is that it is prohibited to exhume the body of any Muslim. But, there are exceptions to this rule. The following is a list of exceptions, translated from the book of Islamic Laws written by Imam Khomeini, and accepted by both Sayyid Sistani and Sayyid Khamenei:
Ruling (643): In the following cases, exhuming the body would be permissible:
1. The deceased is buried in land which was not permitted for burial and the owner disapproves for him to be buried there.
2. The shroud or anything else buried with the deceased was not permitted for his use and the owner disapproves for it to remain in the grave.
3. The deceased was buried without a ghusl or shroud or one realizes that the ghusl was invalid or the shroud was not to Islamic standards. The body not facing the qiblah would fall under this clause as well.
4. Exhuming the body is necessary for establishing a right.
5. The body is buried in a place which would be dishonorable, such as a graveyard of disbelievers.
6. If a religious obligation which is more important than the prohibition of exhuming the body applies, such as saving the life of a living fetus who has been buried along with his mother.
7. If one fears that wild animals would tear apart the body of the deceased.
8. If one part of the deceased was not buried and needs to be buried with the remaining body. As an obligatory precaution, this part of the body should be placed in the grave in such a way that the body of the deceased would not become apparent.
Therefore, it seems as if it would be permissible to exhume the body of the deceased under question, in accordance to two of these principles. First, she was buried in a non-Muslim cemetery (exception 5) and she was buried not facing the qiblah (exception 3). And Allah knows best. Before any decisions are made, I would strongly advise to explain the entire situation to a maria’ or his representative.