MT KARIMUNNISSA BIBI Vs. MIRA BAKSH

JUDGEMENT

(1.) The plaintiff sued on an allegation that her right of privacy had been infringed by certain constructions which the defendant had made. The trial Court gave a decree. The lower appellate Court had dismissed the plaintiff's suit. It was admitted (I take this fact from the judgment) that there is "a custom of privacy" in the locality in dispute. How this admission came to be made or what was supposed to be admitted, I do not know. It is manifest that in a particular locality some of the inhabitants may be in the habit of keeping parda. It is equally manifest that the fact that some persons in a locality keep parda cannot possibly be meant that all the persons within those local limits and at all places are entitled not to have their privacy infringed. A great deal of loose talk has followed from an abuse of certain statements made in the 40 years old decision in Gokul Prasad V/s. Radho [1888] 10 All. 358. But for the purposes of the present case, I am prepared to take it, that the admission of the existence of a local custom means that there are some persons or classes of persons in the city of Allahabad, who are recognized as keeping parda. I use the expression "parda" in a broad sense, meaning that they do not commonly or at all appear before the public. Similarly, I do not imagine that a right of privacy, such as we are now considering, would ever be set up by or would ever be allowed to a man in regard to himself.

(2.) Taking it, therefore, to be admitted by the defendant that there is a custom of privacy effective in certain cases in the city of Allahabad, the next question for decision would be whether the particular plaintiff in question was one of those entitled by the custom to privacy. It is not merely a question of whether the plaintiff is a man, or a woman, a Mahomedan or a Hindu, or a Christian, but a question whether the particular plaintiff is entitled to take advantage of the custom. The trial Court has held that the plaintiff is such a person and that her right of privacy has been infringed The lower appellate Court has held that she is not such a person and that she has no right of privacy. This finding is based, as practically all such findings must be, on the broad facts of the case. He has held that the plaintiff's house in question was already overlooked from another house to the west and that the plaintiff has not shown any reason why she does not object to being overlooked from that particular house. She has not led apparently any evidence to show that particular house was inhabited by her own relatives or any other similar reason.

(3.) Next, it has been found by the lower appellate Court that the house is overlooked from the north roof of a mosque, possibly is visible from the interior of the mosque but certainly from the roof of the mosque to which apparently the whole of such part of the public, as is entitled to enter the mosque at all, would have access. Thirdly, the lower appellate Court has been influenced by the fact that the plaintiff has endured without protest for two years the so called invasion of her privacy. No explanation is forthcoming of this. It is of course, urged to me that the suit is brought within limitation and there will be every day some fresh invasion of privacy, but that does not touch the inference that can reasonably be drawn from the plaintiff's inaction for two years that there has in fact been no real or substantial invasion of her privacy. Even in the case to which I have referred Gokul Prasad V/s. Radho [1888] 10 All. 358 it was considered necessary that there should be a finding that there was a substantial invasion of privacy. That case was decided before the Easements Act was applied to these Provinces. The phrase was undoubtedly taken, as I have pointed out before, from Section 18, III. B, Easements Act. The lower Court has found, for what appear to me to be these three good reasons, that there has been in fact no substantial invasion of any privacy. I have, sitting with Young, J., in Bhagwan Das V/s. Zamisrao Husain , and not yet reported, agreed with the remarks of Mukerji, J., who referred that case tous that: the custom of privacy which undoubtedly exists should not be carried to an oppressive length.