B NIHAL CHAND Vs. MTBHAGWAN DEI

JUDGEMENT

(1.) This is a defendant's appeal from a decision of the District Judge of Saharanpur, reversing the decision of the trial Court and decreeing the plaintiff's claim for the closing of a newly constructed door which had been opened by the defendant in his house on the side of the sahan and rooms of the plaintiff on the ground that it invaded the plaintiff's right of privacy. The trial Court found that no customary right of privacy had been proved, but the lower appellate Court considered that apart from the question of customary right and the changes that had taken place in India during the last 50 years the right of privacy based on social custom and purdah system is quite different from the right of privacy based on natural modesty and human morality, and as it also found that the door opened by the defendant overlooked the courtyard in the house occupied by the plaintiff and that there was no other device by which the plaintiff could stop the invasion of her privacy except by the closing of the door, it held that there had been a substantial injury inflicted and therefore reversed the finding of the trial Court. In second appeal, Mr. Pathak has pointed out that these reasons of the lower appellate Court for holding that a. right of privacy existed in the present case are not very definite and he has relied on a recent decision of a Bench of this Court, viz., the case of Bhagwan Das V/s. Zamurrad Husain . The decision of the Bench was to the effect that the custom of privacy should not be carried to an oppressive length and where there is a clear remedy available to a plaintiff he should not have anything except by way of damages at the outside. This decision would not in itself help the appellant very greatly, but there is a passage in the judgment which goes to show that a right of privacy in an Indian house is not invariably to be presumed. The Bench considered the effect of the well-known decision in the case of Gokal Prasad V/s. Radho (1888) 10 All. 358, in which the Chief Justice remarked: In India, or at any rate in these Provinces, the custom of the purdah has for centuries been strictly observed.... I think it is more reasonable that a neighbour should not be allowed to erect new buildings or to open or extend doors or windows in old buildings in such a way as would substantially interfere with those parts of his neighbour's house or premises which are used by purdah women of the latter's family, than to hold that the latter's only remedy is to build a wall on his own land.... We know as a matter of common knowledge that in these provinces great numbers of purdah women in the hot weather are, I may say, compelled from the severity o? the climate to sleep in the open air, that is, either in the courtyards or the verandahs of their houses, and he goes on to say: I am of opinion that such a right of privacy as that to which I have already referred exists, and has existed in these Provinces, apparently by usage, or to use another word, by custom, and that substantial interference with such a right of privacy where it exists...affords such owner a good cause of action.

(2.) In considering these and other similar passages Boys, J., remarked: Assuming that the decision to which we have referred should still have full force, it cannot amount to more than this that a customary right of privacy is not unknown in the United Provinces. It could not possibly be suggested that, the effect of that decision was that a customary right of privacy exists at every single spot in the United Provinces, or that every single individual in the United Provinces is entitled to rely upon such a custom.

(3.) The earlier decision was pronounced before the Easements Act was extended to this Province, and Mr. Pathak has pointed out that Section 18 of that Act, provides that an easement may be acquired in virtue of a local custom and he argues that the plaintiff-respondent in this case was bound by definite evidence to prove that a custom of privacy existed. On the other hand, there have been some recent cases in which it appears that a right of privacy was presumed. In Bhagwan Das V/s. Zamurrad Husain 1929 All. 676, the referring Sir Lal Gopal Mukherji, J., remarked that the custom of privacy which undoubtedly exists, should not be carried to an oppressive length and where there is a clear remedy available to a plaintiff, he should not have anything except by way of damages at the outside, and in this view he was confirmed by the decision of the Bench in the case of Fazal Ilaq V/s. Fazal Haq . It was held by a Bench of this Court that a customary right of privacy within certain limitations exists in the North Western Provinces, and a material interference with such a right is an actionable wrong. The question of whether the plaintiff had to prove a definite custom of privacy is therefore not free from difficulty, but in my opinion the balance of authority is in favour of the conclusion that at any rate in a case like the present, where the plaintiff is a Vaisha living in a town and the defendant has opened a door which exposes the whole of the plaintiff's sahan as well as the rest of the house to his view, it must be held that there has been an invasion of privacy, and to this extent I agree with the decision of the learned Judge. It has been argued that, as the trial Court has; pointed out, the plaintiff herself does not keep strict purdah and that she is not entitled to complain because she has in fact exposed herself to the public view, being, indeed a Congress volunteer. The right of privacy however is an easement attached to land and not to a person. If there was a right of privacy existing in the house which, no doubt, is occupied by other ladies of the same caste, it does not follow that it has been destroyed because the plaintiff herself has not always observed purdah. My conclusion therefore is that there was a right of privacy which has been violated by the opening of the door and it amounts to a substantial injury that the lower appellate Court has found which can only be stopped by the closing of the door.