M. Hamid Hussain, J.
1. This is a defendants' second appeal. Plaintiff Smt. Rasool Fatima filed Civil Suit No. 132 of 1963 against Sri Ganeshi Lal and his son Bal Krishan for a mandatory injunction to close the windows which they had opened on the southern side in the upper storey of their house while renovating the house. It was asserted by the plaintiff that the opening of the windows by the defendant on the southern wall of their house was infringing the privacy of the females of the plaintiff's house who were purdanashin ladies.
2. The suit was contested by the defendants on the ground that neither the plaintiff was a purdanashin lady nor was there any custom prevailing in the locality by virtue of which the plaintiff had acquired the easementary right of privacy, and that the windows in the southern wall in the defendant's house existed for over fifty years without interruption for enjoying light and air and the defendants have acquired this prescriptive right of easement. On the pleading of the parties the following issues were framed by the trial court :--
(1) Whether the defendants have opened new windows on their southern upper storey wall so as to infringe the right of privacy of the plaintiff?
(2) Whether the plaintiff is a Purdanashin lady and has she, acquired a custernary easement of privacy?
(3) To what relief, if any, is the plaintiff entitled?
3. The contesting parties led both oral and documentary evidence. The trial court on a consideration of the evidence on the record held that the oral evidence of the defendants consisted of interested witnesses and could not be relied upon and nothing was shown to discredit the plaintiff's witnesses Syed Ahmad (P.W. 2) end Abdul Khaliq (P.W. 3). Relying on the evidence of the plaintiff and the Commissioner's report the trial court held that there was no room at all for doubt that right of privacy of the. plaintiff on the upper storey was substantially infringed from the defendant's windows and the plaintiff was entitled to the relief claimed. Accordingly the suit was decreed against the defendants with costs and the defendants were directed to close the windows in dispute within one month failing which the same to be closed through court at the expense of the defendants.
4. Against this judgment and decree of the trial court the defendants filed Civil Appeal No. 960 of 1964. The lower appellate court after re-appraisal of the evidence on the record affirmed the findings of the trial court and dismissed the appeal with costs. The two defendants thereafter have filed this second appeal.
5. Learned counsel for the appellants has contended that the finding of the court below that the windows in the southern wall of the defendant's house infringed the privacy in the house of the plaintiff has not been recorded on a correct apperciation of the evidence on the record. This contention of the learned counsel cannot be accepted in second appeal. The learned Munsif, has recorded a clear finding on the basis of the evidence on record and the Commissioner's report that there was no room for doubt that the privacy of the plaintiff on the upper storey was substantially infringed from the windows in dispute. The trial court also held that the plaintiff was a Pardanashin lady and enjoyed the customary right of privacy. The lower appellate court on reappraisal of the evidence on the record held that the windows in the southern wall of the upper storey of the defendants' house had infringed plaintiff's right of privacy in the upper storey of her house. Those findings of the lower appellate court are findings of fact and cannot be assailed or disturbed in second appeal.
6. The next question contended by learned counsel for the appellant is that the courts below were not justified in relying upon the Commissioner's report and in not considering the objection filed by the defendants. According to the learned counsel the objections were filed at a late stage asd the court refused to consider the objections. Although this ground is contained in the memorandum of appeal but it does not seem to have been pressed by the learned counsel in the lower appellate court. This grievance of the learned counsel has no substance. The Commissioner's report dated 26-3-1964 was filed on the same day in the Court of City Munsif. The English Order Sheet of the Munsif's Court shows that on 26-2-1964 Commissioner's report 34C (2) was filed and objections, if any were required to be filed within ten days. On 7th March, 1964 the order sheet contained the order that 'neither party filed objection against Commissioner's report. The report, therefore, is confirmed and brought on the record'. Thereafter on 13-3-1964 objection 36C (2) dated 12-3-1964 on behalf of Ganeshi Lal was filed and the court order was ''Defendant's objections against Commissioner's report moved beyond time. File'. Thus: the trial court was justified in refusing to take into consideration the objections of the defendants to the Commissioner's report which were filed beyond time.
7. The next contention of the learned counsel for the appellant is that in the developing society of today, notions of privacy of Pardanashin ladies are outdated and cannot be given protection of the law courts in India. In support of this contention the learned counsel has placed reliance on a decision of Hon'ble Dhawan, J. reported in : AIR1963All340 , Basai v. Hasan Raza Khan. In this case Hon'ble Dhawan, J. was of the view that this custom of purdah was an outdated one and the decisions of this Court upholding that custom, were no more good law.. In this connection the learned Judge made a reference to two decisions of this Court reported in (1888) ILR 10 All 358 (Gokal Prasad v. Radho) and : AIR1935All1002 -- Nihal Chand v. Mst. Bhagwan Dei. Both the above decisions were of the Division Benches. Dhawan, J. did not agree with the view expressed by both these Division Benches. The learned Judge found the case of Gokal Prasad v. Radho reported in (1888) ILR 10 All 358 to be no more good law While considering (1888) ILR 10 All 358 the learned Judge observed in paragraph : AIR1963All340 :--
'The Judges conceded even at that time that the purdah system had its faults but evidently thought that it was not the function of Judges to inquire whether the custom was reasonable. With respect, the law enjoins that a Judge must satisfy himself before enforcing rights claimed on the basis of a custom that the custom itself is not unreasonable or opposed to public policy. (1883) ILR 10 All 358 was decided at a time when the policy of an alien Government was to keep aloof from questions of social reform and not disturb social customs even after they had become undesirable.'
The Division Bench which decided the reported case in (1888) ILR 10 All 358 consisted of Edge, C. J. and Mahmood, It is pertinent to quote the observations of Mahmood, J.:--
'The learned Chief Justice has fully and exhaustively dealt with the difficulties which arise in this case owing to the conflicting nature of the case law, and I agree with him so fully that it is not necessary for me to deliver a separate judgment. But as a native of India myself, I may without hesitation .say that in the territories subject to the jurisdiction of this Court the parda system prevails alike among Hindus and Mohammadans and that both these sections of the community by immemorial usage and custom, regard invasion of privacy as actionable. Indeed, if we were to hold any view other than that which the learned Chief Justice has expounded, we should really -be reducing even the market value of thousands of houses inhabited by the female portion of the population, if not also the value of houses used by male members of the Hindu and the Mohammadan population of these provinces. There is no statute law applicable to these Provinces to govern the decision of a case such as this, and I fully concur with the learned Chief Justice in his opinion that the importation of the English law as to the invasion of privacy being unactionable, is not only not justified, but positively opposed to the customs, habits and conditions of life of the populations living under the jurisdiction of this Court. Even in Europe, countries whose principles of law are derived from or founded on the civil law, recognize invasion of privacy as an actionable wrong, a doctrine which no doubt owes its origin to the conditions of life in those countries regulated as their conditions must necessarily be by the climate and the social and religious habits of the population.
The purda system which in India is based both on religious and social notions may have its faults; but Judges take facts as they are, and we, sitting here as Judges with a duty to adjudicate upon such dispute must take cognizance of those facts and administer justice between the parties.
The learned Chief justice has pointed out that under conditions of life, such as they are In these provinces, the custom that invasion of privacy is actionable is far from 'being an unreasonable custom, and the custom itself is so well recognised that Mr. Moti Lal for the respondent in the course of his argument stated that it was wholly unnecessary to remand the case for ascertaining the custom.
I concur in all the views to which the learned Chief Justice has given expression, I have no doubt that those views will be greeted by the entire Hindu and Mobammadan population of these Provinces; and I hope that his Lordship's exhaustive judgment will place the law, as administered by this Court, upon a firm and ascertainable footing, rendering ineffective the rulings to the contrary, which have unfortunately done much to disturb the comfort of neighbours in towns, and have I am afraid encouraged unnecessary invasion of the immemorial right of privacy, and consequent litigation.'
8. The case of Nihal Chand v. Smt Bhagwan Dei reported in : AIR1935All1002 was also decided by a Division Bench consisting of Sulaiman, C. J, and Bernnet. J. While considering this decision of the Division Bench, Hon. S. S. Dhawan, J, did not agree with the view expressed therein treating it to be the view of only Sulaiman, C. J. The learned Judge probably did not notice that the decision was of a Division Bench and not of a single Judge. The custom of purdah prevailing in India has been recognised by courts in this State since almost a century. The decisions of the two Division Benches referred to above are still good law unless the view expressed by them has been considered and reversed by a larger Bench of this Court. It is not open to a single Judge to ignore or disapprove the law laid down by a Division Bench. In the case of L. Shri Bhagwan v. Ram Chand reported in : 3SCR218 the Supreme Court has observed:--
'It is hardly necessary to emphasize that consideration of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take a view that the earlier decision of the High Court whether of a Division Bench or of a single Judge need to be reconsidered, he should not embark upon that inquiry sitting as a single Judge but should refer the matter to a Division Bench or place the matter before the Chief Justice to enable him to place matter before a larger Bench to examine the question. That is the proper traditional way to deal with such matter end it is founded on healthy principles oi judicial decorum and propriety. It is to be regretted that the learned Single Judge departed-from this traditional way and chose to examine this question himself.'
9. According to the learned Judge Dhawan the Purda was practically extinct among the Hindus and has been discarded by many sections of the Muslims, it is out of favour in Egypt, Turkey, Uzbekistan, Tadjistan, Indonesia, even the Islamic State of Pakistan and most Islamic countries except the socially most backward and any restriction today on the property rights of citizens for enforcing a right based on purdah would baldly be reasonable and today the seclusion of women is completely inconsistent with the social philosophy on which our Constitution, is founded.
10. The question whether or not the Purda is in keeping with the social development of India would not be a matter for consideration in the law courts. The right of privacy of a Purdanashin lady is still recognised. even though the concept of Purdah may be gradually disappearing, if the law or the law courts recognise the right of privacy of an individual that right is to be protected. If a Purdanashin lady desires to observe purdah she cannot be compelled to discard it and appear in public merely because it is outdated and not in consonance with the changing pattern of society from time to time. Privacy is also jealously guarded by even the most modern countries arid it is not a privilege of only the Purdanashin ladies. No one would like, specially in India, irrespective of the caste and creed to countenance their ladies while in their homes busy in the domestic routine of life 'being watched, observed or stealthily stared by strangers. During summer most of the people including ladies, on account of oppressive heat, have to sleep out in the court-yard of the house. The Indian women have always been jealous of intrusion in their privacy in their homes. It is not always that the women inside their houses are clothed with the attire which they normally use while appearing in public. Therefore privacy inside the house is a right of every woman and much more so for a woman who has inhibitions by custom or religious notions to appear in public end keeps herself in seclusion by observing purdah. In my view expressed above, I am supported by a later decision of Justice K.B. Asthana, as he then was, in the case Bhagwan Das v. Parmeshwar, reported in 1971 All WR (HC) 474. The learned Judge K.B. As thana has observed that
'It is the settled law in U.P. that there exists in cities and urban areas a customary right of privacy in so far as the women folk are concerned.'' The learned Judge was of the view that the decision of Dhawan, J. did not lay down any rule of law to the effect that customary right of privacy of woman folk should not receive recognition. The learned Judge further observed that
'In all civilised countries of the world and even in so-called uncivilized groups some modicum of privacy for domestic purposes is necessary, without which the family life would become most inconvenient and difficult.'
11. In the case decided by Dhawan, J. the controversy was with regard to a window which had been opened in the kitchen wall and for demolishing the catlle troughs and pegs and for closing a Nabdan. The facts of the case were wholly different and, therefore, this case relied upon by the learned counsel is not applicable to the facts of the instant case where the plaintiff claimed the right of privacy on the ground that she was a purdanashin lady and the courts below have held that the right of privacy of the plaintiff who was a purdanashin lady had been infringed by opening of the new windows by the defendants.
12. Learned counsel for the appellant has contended that the plaintiff could raise the wall of her house in order to ensure privacy in her own apartments. This contention of the learned counsel would mean that the plaintiff should keep on raising the wall of her house according to the constructions which the defendant may choose to set up in the second or third storey, in their house and opening windows in the southern wall. The right of privacy claimed by the plaintiff was based on the continued enjoyment of this privacy since a[ long time. The defendants while constructing or reconstructing their house had to keep in mind not to infringe the easementary right to privacy which has, been enjoyed by the plaintiff in the past.
13. Having considered arguments of the learned counsel for the appellant and seeing the record, the view taken by the courts below in decreeing the plaintiff's suit is the correct view and it is also in consonance with the view of this Court (reported in (1888) ILR 10 All 358 and : AIR1935All1002 , which decisions are still binding and have the force of law.
14. The result is that this appeal has no merit and is accordingly dismissed with costs.