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Basai Vs. Hasan Raza Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1230 of 1955
Reported inAIR1963All340
ActsEasements Act, 1882 - Sections 18; Specific Relief Act, 1877 - Sections 54
RespondentHasan Raza Khan and ors.
Appellant AdvocateP.M. Verma, Adv.
Respondent AdvocateV.K.S. Chaudhry, Adv.
DispositionAppeal allowed
(i) civil - easements - section 18 of easements act,1877 - an easement makes an inroad into another person's right of property - must be established by clear and cogent evidence - enforceability of right of privacy - court cannot impose restrictions on lawful enjoyment of one's own property - right cannot be claimed with regard to open land. (ii) nuisance - section 54 of specific relief act, 1877 - shifting of old source of nuisance from one place to another - does not amount to nuisance unless shifting has aggravated it. - - they further complained that the defendant recently had opened a window in his kitchen wall overlooking the plaintiffs' sehandarwaza and this disturbed the plaintiffs' privacy for the defendant could peep through this window and the plaintiffs' women folk were.....s.s. dhavan, j.1. this is a second appeal by basai against the decision of the civil judge of basti decreeing 'the suit of plaintiff-respondents hasan raza khan and others for an injunction requiring him to close a window in his kitchen wall and demolishing his cattle trough and pegs (haudi and khunta) and also close his nabdan. the plaintiffs and the respondent are resident of the same village and neighbours, the defendant's house overlooking the plaintiffs' sehandarwaza (sort of open courtyard). the plaintiffs alleged that a pathway ran through the defendant's sehan upto the plaintiffs' sehandarwaza which enabled them to take bullock-carts to their house; but recently the defendants had made constructions on his sehan encroaching upon this pathway and thereby reducing its width with the.....

S.S. Dhavan, J.

1. This is a second appeal by Basai against the decision of the Civil Judge of Basti decreeing 'the suit of plaintiff-respondents Hasan Raza Khan and others for an injunction requiring him to close a window in his kitchen wall and demolishing his cattle trough and pegs (haudi and khunta) and also close his nabdan. The plaintiffs and the respondent are resident of the same village and neighbours, the defendant's house overlooking the plaintiffs' sehandarwaza (sort of open courtyard). The plaintiffs alleged that a pathway ran through the defendant's sehan upto the plaintiffs' sehandarwaza which enabled them to take bullock-carts to their house; but recently the defendants had made constructions on his sehan encroaching upon this pathway and thereby reducing its width with the result that no bullock-cart could pass. The plaintiffs contended that they had acquired a prescriptive right of passing bullock-carts over this pathway which has been infringed by the raising of the new construction. The plaintiffs also alleged that the defendant had recently shifted his old nabdan to a new place along his own wall which was near the house of the plaintiffs; and the plaintiffs apprehended that they would be disturbed by the foul smell of the dirty water discharged from the nabdan. They further complained that the defendant recently had opened a window in his kitchen wall overlooking the plaintiffs' sehandarwaza and this disturbed the plaintiffs' privacy for the defendant could peep through this window and the plaintiffs' women folk were consequently unable to sit in the sehandarwaza. The plaintiffs asked for an injunction requiring the defendant to demolish his constructions which had narrowed the width of the pathway, remove the nabdan to its old place, and close the window in his kitchen wall. They also asked for a fourth relief which need not be considered in this appeal as it was rejected by both the Courts below and no argument was addressed to me against their concurrent decisions.

2. The trial Court held that the defendant had built his constructions on old foundations, that the plaintiffs' prescriptive right of passing bullock over the pathway had not been established, and that the nabdan and the window caused no inconvenience to the plaintiffs. Accordingly it dismissed the suit. In appeal the learned Civil Judge reversed all these three findings. He held that the constructions in dispute were not built on old foundations but were new, that the plaintiffs established their prescriptive right over the pathway, that the window in the kitchen wall disturbed the plaintiffs* right of privacy and the shifting of the nabdan was likely to cause nuisance to the plaintiffs. He allowed the plaintiffs' appeal and ordered the defendant to demolish the construction and thus restored the plaintiffs' prescriptive right, to close the window and remove the nabdan. The defendant has now come to this Court in second appeal.

3. Mr. Prem Mohan Lal Verma learned counsel for the appellant argued that the decision of the lower appellate Court was erroneous on all the three points on which he reversed the findings of the trial Court. He had erroneously held that the plaintiffs had established a prescriptive right of passing bullocks over the pathway, that the window in the wall disturbed the plaintiffs' privacy and that the nabdan had resulted in a nuisance. I shall consider the findings of the learned Judge on each of these three poults.

4. The plaintiffs had claimed a prescriptive right of passing their bullocks over a pathway which is admittedly the property of the defendant. They had to prove that they had been exercising it without interruption for 20 years. The trial Court observed that the plaintiffs did not even possess any bullock-cart and the question of their passing over the pathway did not arise. Reversing this finding the learned Judge observed

'the trial Court has remarked that plaintiff has no bullock-cart but whether plaintiffs' bullock-cart used to pass over this pathway is not material. What is material is whether the alleged pathway was one kaththa wide as alleged.'

It is evident that the learned Judge had not appreciated the requirements of S. 15 of the Easements Act and this mis-apprehension made him reject as immaterial what is material and regard as relevant what was completely irrelevant. The fact that a pathway is wide enough for bullock-carts does not prove that the person claiming a prescriptive right had been passing bullock-carts over it without interruption for over twenty years. If the argument of the learned Judge is correct a person has only to prove that a pathway is wide enough for certain types of vehicles to establish his prescriptive right of passing vehicles of that type over it. In this case the plaintiffs admitted that they never possessed bullock-carts, and yet the learned Judge held that they had established a prescriptive right of passing bullock-carts over this pathway. The approach of the trial Court was correct, and it rejected the plaintiffs' claim on the ground that there was no evidence that the plaintiffs had been passing bullock-carts over the pathway in the past. An easement makes an inroad into another person's rights of property and for that reason it must be established by clear and cogent evidence. The finding with regard to the prescriptive right must be reversed.

5. As regards the Nabdan the trial Court has held that its shifting from point Y to X could cause no inconvenience to the plaintiffs, but the learned Judge disagreed on the ground that the shifting must have caused a nuisance because of the foul smell which escapes from the nabdan. I am afraid the learned Judge did not appreciate the law of nuisance. This was not a case of creation of a new nuisance but the shifting of an old one to a new place only two yards to the west. If no new source of nuisance is created but an old source is shifted from one place to another, the person complaining of nuisance has to prove that it has been aggravated by the change of place. But there is no evidence that the shifting of the nabdan has aggravated the nuisance. The old nabdan like the new, was constructed along' the defendant's wall overlooking the plaintiffs' sehan, and the new nabdan is virtually in the same place, only a little more towards the west. The foul smell, if any, is not due to the shifting of the site but its being a nabdan. The plaintiffs never objected to the old nabdan which had been in existence for a long time. I have looked at the map which forms part of the decree and observed the situation of the nabdan. I do not think that the plaintiffs can complain of any nuisance which did not exist before. This finding of the learned Judge must also be reversed.

6. I now come to the learned Judge's finding with regard to the window, which is not exactly a window but a circular hole of a radius of 9' made in 'the defendant's kitchen wall to let the smoke out. The trial Court was of the view that it was not likely to cause any inconvenience to the plaintiffs: and saw no necessity for directing the defendant to close it. The learned Judge, after an inspection of the locality, observed,

'I had gone in the said kitchen of the defendant from inside and on the very entering in the said kitchen I could perceive things in the sehan-land of the plaintiff in front of plaintiffs' sadar door. The plaintiffs' family being a Muslim family wherein generally purdah is observed, the said hole affects the right of privacy and it being not proved that there was any such hole previously, the said hole is liable to be closed as the same is proved by plaintiffs' evidence, to be a new opening'.

Thus the learned Judge was of the view that the plaintiffs' family, being purdah-observing, was entitled to ask the defendant to close his hole because it disturbed the privacy of their purdah-nashin women folk whenever they sat in the open sehandarwaza (courtyard) in front of the plaintiffs house.

7. Mr. P. M. Verma argued that the plaintiffs had no right of privacy with regard to their open 'sehandarwaza, while Mr. Goel contended that a Muslim family observing pardah was entitled to the protection of the Court if its privacy was disturbed. A few authorities were cited and I examined a fairly large number in Court myself. The first authoritative decision is that of Edge C. J. and Mahmud, J. in Gokul Prasad v. Radho, ILR 10 All 358, which was decided in 1888. The learned Judges, after reviewing a very large number of Indian decisions held that purdah was an established social custom in the North West Provinces which was not unreasonable. I have also perused the decisions in Abdul Rahman v. D. Emile, ILR 16 All 69, Manishankar Hargovan v. Trikam Narsi, 5 Bom HCR AC 42; Bohra Tara Chand v. Mst. Rayazi Begum, AIR 1923 All 404 (1); Bhagwan Das v., Zamurrad Hussain : AIR1929All676 ; Nihal Chand v. Mst. Bhagwan Dei : AIR1935All1002 ; Bhulan Lal v. Altaf Husain : AIR1945All335 ; Kunj Bihari v. Brij Bihari Lal, AIR 1947 Oudh 139; Agha Muhamad Husain v. Elias Haji Wahiddino, AIR 1948 Sind, 36; and Gulab Chand Gappalal v. Manikchand Gulabchand : AIR1960MP263 . I have also reviewed the law relating to custom and examined the authorities on the question when a custom may be abrogated or changed and whether the Courts under changed social conditions should enforce a custom which is no longer just nor necessary but has come to be regarded as a social evil. Halsbury's Laws of England, 3rd edition, Vol. 11, pp. 158-172. Mookka Kone v. Ammakutti Animal. AIR 1928 Mad 299 (FB); Abdul Majid v. Suba Khan, AIR 1940 Lah 109; Abdul Majid v. Suba Khan, (1938) 40 Pun LR 588; and Bui v. Bela Singh, AIR 1947 Lah 233. I have to consider to what extent a right of privacy founded on the observance of purdah should be enforced by the Court today.

8. In order to determine the extent of the right of privacy the Court must ascertain the fundamental principle on which it is based. Suleiman C. J. in : AIR1935All1002 approved of the view, that the right of privacy may be based either on social custom and the purdah system or 'on natural modesty and human morality,' which was not confined 'to any class, creed, colour, or race and is the birth right of every human being and sacred.' Ho was of the opinion that if based on natural modesty it did not require strict proof of the existence of a custom. Thus an attempt was made to change the nature of a right founded on the custom of purdah into a universal right based on natural reason. With profound respect for a very distinguished judge, I have difficulty in accepting the concept of a right of privacy based on

'natural modesty and human morality which is not confined to any class, creed, colour, or race and is the birthright of every human being'.

In England the law does not recognise any right of privacy which is peculiar to certain parts of India. What the learned Chief Justice termed, 'natural modesty' is a very relative and subjective quality which is not independent of class, creed, race, colour but varies according to the social conditions and environment of the person concerned. A person keeping his women folk in purdah will consider as immodest what is normal behaviour for a lady who regards purdah as social evil and believes in equality between the two sexes, as did the founders of our Constitution. A right of privacy 'based on natural modesty' is merely the old right based on purdah dressed up in rationalist phraseology.

9. In a later case : AIR1945All335 , Allsop and Malik, JJ. made it quite clear that the basis of the decision in ILR 10 All 358 in favour of a customary right of privacy was the purdah system in vogue in the United Provinces and that the custom was confined to the protection of pardanashin women and those parts of a plaintiffs's house which were ordinarily occupied by females. They dissented from the view expressed in an earlier case AIR 1923 All 404(1) that the existence of a right of privacy is a general right not confined to any class or creed. Thus the learned Judges put the right of privacy back where it belonged by making it clear that it was linked with the purdah system and they debunked the idea - if I may use a popular expression - that this right can be claimed on any rational principle which makes it 'the birth right of all mankind'. The entire trend of the judgment, which contains an exhaustive survey of the authorities on the right of privacy, is against too wide an extension of this right, for they observed,

'It may be that the custom once established does not extend only to women who are in the habit of observing parda because women of all races are entitled to a certain degree of privacy depending on the customs of their class and even those who expose their faces in public would expect to have their privacy respected in their more private apartments, but we think it would be stating the custom too widely to lay down that any portion of any house used and occupied by men should be protected. If such a custom prevailed it would be practically impossible to raise new buildings or constructions in any inhabited area.'

10. There is no doubt a code of decency enforced in all civilised society, under which no one has a right to annoy others by acting indecently or behaving as a Peep Tom or making a nuisance of himself to his neighbours. The law Courts, civil and criminal, will come to the aid of any person whose feelings are outraged by deliberate acts of intrusion into his privacy. However, the remedy in all such cases is against the specific conduct, or rather misconduct, of a person. But the right of privacy which was recognised in ILR 10 All 358 had nothing to do with the misconduct of the defendant, but a customary right based on purdah which entitled the owner of one property to compel the owner of another to modify the design or architecture of his property so that the women residing in the dominant tenement could be kept in purdah. The question is whether this right can be enforced today, and if so to what extent.

11. The Courts have always taken the attitude that the right based on purdah must not be permitted to spread to oppressive lengths. AIR 1947 Oudh 139, Laduram v. Sheodev, 1959 Raj LW 273, Bhulan Lal v. Altaf Husain : AIR1945All335 . I am of the opinion that a right based on a social custom can become oppressive if the custom itself begins to disintegrate or comes to be regarded as a social evil.

12. In ILR 10 All 358 the learned judges made it clear that the right of privacy was based on the custom of purdah, for they observed:

'The fact that there is no such custom of privacy known to the law of England can have no bearing on the question whether there can be in India an usage or custom of privacy valid in law. The conditions of domestic life in the two countries have from remote times been essentially different and in my opinion, it is owing to that difference in the conditions of domestic life alone that a custom which appears to me to be a perfectly reasonable one in India should be unknown in England. In India, or at any rate in these Provinces, the custom of the purda has for centuries been strictly observed by all Hindus except those of the lowest castes and by all Muhammadans except the poorest. It cannot be doubted that the male relations of a purda-nashin woman and the woman herself would consider it a disgrace were her face to be exposed to the gaze of male strangers, and whilst that is the view of those amongst whom the custom of the purda prevails, 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 purda-nashin women of the latter's family than to hold that the latter's only remedy is to build a wall on his own land, which, although it would maintain his privacy, might deprive his house of light and air and render it uninhabitable, or to screen his windows with probably the same result.'

13. And further:

'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 disputes must take cognizance of those facts, and administer justice between the parties.'

14. 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. 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. But judicial Voices of dissent were not lacking. In Kheduru Lal v. Jagannath Prasad unreported S. A. No. 545 of 1869, a Division Bench of this Court rejected as unreasonable the grievance of a party claiming a right of privacy that the other party by building a second storey was able to look through a window which lighted the women's apartments, and observed 'But against this the defendant can easily protect himself by a screen or curtain'.

In Joogul Lal v. Mst. Jasoda Beebee, (1871) 3 NWP HCR 311, Morgan C. J. and Spankie, J. refused relief to a plaintiff on the ground that the defendant had added to the upper part of a house as to command a view of the plaintiff's apartments and observed,

'The case is really one in which a house owner in a street, having changed the arrangement, of construction of the upper part of his house in a manner otherwise consistent with his joint rights of enjoyment, is sought to be restrained, not by the holder of an adjacent house, but a neighbour living on the other side of the road, who can allege against the defendant no more substantial cause of suit than this, that the newly constructed place admits of persons who may temporarily occupy it seeing portions of the interior of the plaintiff's house through his windows. Even if this is so, it is no more than others may admittedly do. There can be no question in such case of loss of privacy.'

The High Court at Calcutta, in 1862, observed,

'We are not aware that where two owners of houses live contiguous, but separated by an intervening space, the custom of the country requires that neither party shall make any improvement on his property, if such improvement has the effect of depriving the other of a certain degree of privacy. We should rather say that when the one opens a window which overlooks the other, it is the custom of the country that the other raises a screen or adopts some other contrivance to counteract the effect of the opening made in his neighbour's house.'

The observation was noticed in ILR 10 All 358. The Madras High Court in Komathi v. Gurunanda Pillai 3 Mad HCR 141 observed that in India there was no right of privacy the interference with which was a wrong, for which a remedy was given. These and other decisions were cited before the learned judges in ILR 10 All 358 but not approved. The authority of their own decision was doubted as no longer valid, 50 years later, by a Division Bench of this Court in Bhagwan Das v. Zamurrad Khan : AIR1929All676 which observed:

'We might then have felt compelled to re-consider whether the decision in ILR 10 All 358 should still retain its full force after nearly half a century has passed, when it is manifest that the force of custom, especially the custom of purda, may be very largely varied in the course of so long a period. We have not, however, to re-consider that case now, for there is another fatal defect in the claim of the plaintiffs.'

15. ILR 10 All 358 was decided before the Easements Act was applied to the territories now included in Uttar Pradesh. Today the Act applies to this State, and any right of privacy must fulfil the conditions prescribed by S. 18 of that Act which provides,

'An easement may be acquired by virtue of a local custom. Such easements are called customary easements.'

The onus is on the party claiming an easementary right of privacy based on custom to prove the existence of a local custom which recognises such a right. The essential characteristics of a custom are that (1) it must be of immemorial existence, (2) reasonable, (3) certain, and (4) continuous: Krishna Kumar Deb v. Atul Chandra Ghose : AIR1924Cal998 . I am doubtful whether the custom of purdah fulfils these conditions today. In ILR 10 All 358 it was observed,

'In India, or at any rate in these provinces, the custom of the purda has for centuries been Strictly observed by all the Hindus except those of the lowest classes.'

With respect, purdah has been no pan of Hindu religion and civilisation and has never been observed in many parts of India. There is not even a trace of its existence in the Ramayana, Mahabharata, the dramas of Kalidas, even Dandi's novel Dashafcumara-Charitam which is a much later work, or in any other piece of Sanskrit literature, epic or classical. It was imposed in the North under Muslim rule but not adopted by the large masses of Hindus (incidentally dismissed by the learned. Judges who decided ILR 10 All 358 as 'of the lowest castes').

Even before that decision, Hindu divines, like Dayananda and others had denounced purdah as not sanctioned by any Shastra or custom. Today the custom cannot be considered as certain with regard to any locality or class of persons supposed to be observing it. In the 19th century it was rarer for an Indian girl to go to school or college but today there are girls schools in every tehsil and lakhs of girl students every year pass out of schools and colleges where thousands of women instructors teach them. In these conditions it is idle to pretend that purdah is observed in any locality with any degree of uniformity or certainty. Nor can purdah be regarded as a reasonable custom today. It is injurious to the health of women and based, I on a social philosophy which regards woman as the possession of man and is thus the negation of the philosophy on which our Constitution is founded.

16. In AIR 1940 Lah 109 Rashid, J. rejected, as 'contrary to numerous decisions of their Lordships of the Privy Council and the various High Courts,' the proposition that a custom once established can only be altered by legislation and not by modern) judicial decisions. The learned judge quoted with approval the following observation of the Madras High Court in ILR 51 Mad I: AIR 1928 Mad 299 (FB):

'Indian Courts are Courts of law as well as of equity, and they ought not to give effect to a custom which the growing consciousness of the community in which it is said to have prevailed is prepared to treat as unsuited to modern conditions and from which it has allowed a departure in several cases. When a custom which is not in accordance with the ordinary law governing the Hindu community is giving way to englightenment in order to bring it in line with other communities Courts would not be justified in giving effect to it and thereby compelling the unwilling community to be bound by the custom which it has practically abandoned. The judicial recognition of a custom which a community is prepared to jettison is neither necessary nor just. Even if such a custom as that set up had prevailed at some time, I am not prepared to hold' that the custom has been considered to be a binding one during the last 20 or 25 years'.

If I may say so with deep respect, there is 'the wisdom of the ages' in this observation which no judge who is asked to enforce a custom no longer in accord with the conscience of society can ignore without bringing the judicial process into disrepute and justifying Goethe's satire against the science of jurisprudence:

Ich weiss wie es um diese Lehre Steht Es-erben sich Gesetz and Rechte Wie eine enige-Krankheit fort, Sie Schleppen von Geshchlecht sich zum geschlechte, Und rucken Sacht von Ort zu Ort Vernunft wird unsinn, Wohltat Plage; Wehdir, Dass du ein Einkel bisti (Know the nature of this Science. Laws and rights are transmitted like an eternal disease They trail from generation to generation, and move imperceptibly from place to place. Reason becomes nonsense; beneficence calamity, Woe unto you that you are a grandson!)

17. In 40 Pun LR 588, the Lahore High Court observed that a custom may be abrogated or changed by the same community by an expression of its collective will evidenced by well-established practice. I respectfully agree, for in a changing world in which nothing is permanent except change itself, there can be no tyranny worse than the tyranny of an unchanging custom in a changing society. '--denn alles, was entsteht, 1st wert, das es zugraunde geht'; Faust; 1-3 ('for everything that has originated, deserves to be annihilated'). The transitoriness of all social phenomena is one of the fundamental principles on which our civilisation is founded.

Kala moolamidam sarvam, Jagad bijam, Dhananjaya: Kala eva samadatte, punareva yad-richchays. Mahabh., Mausal. P. 8-33.

In AIR 1947 Lah 233, Harries C. J. and Mahajan J. held that 'a custom can be abrogated by consensus of opinion among the members of the community, and if for a considerable period that feeling continues in the community and they act according to it and do not follow the old rule, the old custom can certainly be abrogated'. If I may paraphrase these two decisions with the aid of Goethe's dictum, it means that a generation of grandsons is not necessarily bound by the laws and rights which, were founded on the customs of their grand-fathers.

18. The right of privacy is based on the custom of purdah and nothing else, and the question is whether the right must continue to be enforced as before when the social custom on which it was based is in the process of disintegration and generally admitted to be a social evil. The second question is whether the enforcement of this right as a vested interest is consistent with the philosophy on which our Constitution is founded and its enforcement at the cost of the property rights of others a reasonable restriction on the property rights of citizens who are compelled to alter the designs of their houses in deference to the peculiar susceptibilities of those who keep their women in seclusion.

19. ILR 10 All 358, was decided 75 years ago when social conditions were different. Purdah was common among Muslims and many sections of Hindu had adopted it under the influence of the Muslim civilisation. The policy of the Government of those days was to remain aloof from our social problems and not to disturb the social customs, good or bad. Today purdah is practically, extinct among the Hindus and has been discarded by many sections of the Muslims. It is out of favour in Egypt, Turkey, Uzbakistan, Tadjikstan, Indonesia, even the Islamic State of Pakistan and most Islamic countries except the socially most backward. Any restriction today on the property rights of citizens for enforcing a right based on purdah would hardly be reasonable. Today the seclusion of women is completely inconsistent with the social philosophy on which our Constitution is founded. Article 15 enjoins inter alia that the State shall not discriminate against citizens on the ground of sex. Article 39 commands the State to direct its policy towards securing that the citizens, men and women equally, have the right to adequate means of livelihood and there is equal pay for equal work for men and women. Those are not idle provisions and women are serving today as District Magistrates, Ministers, legislators, one as a High Court Judge, and earning their living in almost every walk of life. These are fundamental principles which cannot be reconciled with any custom which keeps women in seclusion. I am conscious that Article 15 permits the State to make any special provision for women and children, but I do not think that purdah which is harmful to health can be regarded as a special provision in the interests of women. It is a relic of' the Muslim rule. Of course, the State refrains for reasons of political wisdom from interfering with, many existing customs which society would be better without, and does not compel people by force to bring their women out of seclusion, as did Peter The Great. But it is one thing for the State to tolerate a custom like purdah but quite another to make it a vested right and enforce claims based on it by restricting the property rights of others.

I do not think the State today can compel its citizens to modify the design and architecture of their houses in deference to the peculiar susceptibilities of those who keep their women in seclusion. Today any restriction on a citizen's right to enjoy his property must submit to the test of being reasonable and I cannot admit that a restriction which is imposed for the purpose of safeguarding, and thus, perpetuating, purdah can be regarded as reasonable. For all these reasons I am inclined to think, very respectfully, that some of the old decisions recognising or enforcing a right of privacy based on purdah are no longer valid and need re-con- sideration as they were made a long time ago and today there has arisen a generation which knows no purdah. A right founded on a custom cannot, like the grin of the Cheshire Cat, survive the disappearance or disintegration of the custom itself. Today every citizen enjoys rights of property which under the Constitution are subject to reasonable restrictions but not the susceptibilities of those who want to perpetuate purdah.

20. In a case where all the inhabitants of a particular locality, including the parties to a dispute have observed the custom of purdah for a longtime, a right of privacy may possibly be enforced on strict proof of the existence of such a custom, though I have grave doubts that the Courts today should accept any such custom as reasonable. But where only the plaintiffs' family observe purdah but the defendants' do not, the Court cannot restrict the property rights of a citizen who does not observe purdah to soothe the feelings of one who does. In this case the plaintiffs have not established that the inhabitants of the locality including the defendants observe the custom of purdah. They merely allege that they themselves do, and rely on the supposed prevalence of a custom throughout the State. I do not think they can rely on old decisions of 70 years ago which held such a custom to exist. Today the Courts cannot, in flagrant defiance of social realities, assume without strict proof the existence of any such custom in any locality.

21. I agree with the learned judges who decided : AIR1929All676 that the view taken 70 years ago on ILR 10 All 358 needs re-consideration. Ordinarily I would have referred this case to a larger Bench, but this is not necessary as this part of the plain-'tiffs suit can be disposed of on two other grounds. The sehandarwaza in respect of which the plaintiffs have claimed the right of privacy based on purdah is not enclosed but open land along which runs a public pathway. I do not see how a person can claim a right of privacy when using open land which is exposed on all sides. A right of privacy for open land is a contradiction in terms. Any passerby can have a good look at the plaintiffs' women folk when they sit on this plot of land. It was conceded that if defendant looks at the sehandarwaza from the pathway adjoining the open and over which he has a right to pass and re-pass, there is no invasion of the plaintiffs' right of privacy. The hole is in wall which overlooks the pathway. If the plaintiffs' right of privacy is enforced, the result will be that if the defendant looks at the land through the hole, there is invasion of the privacy, but if he looks at it front the outer side of the hole there is none. The Court will not be a party to a decision which will create such an absurdity.

22. Secondly, the window has been constructed in the kitchen for the purpose of letting the smoke out. People do not remain in their kitchens all day but go there only for the purpose of cooking food and their meal hours are fixed. The plaintiffs apprehend that it is possible for anyone to see their women folk through this hole. But there is not a scrap of evidence that the defendant or his people while using the kitchen have been found looking at the plaintiffs' women. It is very likely that the defendant went about his business in the kitchen on the normal way and the plaintiffs' apprehensions are due to a sensitiveness peculiar to those who keep their women folk in seclusion. I am of the opinion that the plaintiffs cannot claim any right of privacy in these circumstances and the Court will not be justified in imposing any restrictions on the defendant's lawful enjoyment of his own property.

23. I allow this appeal and set aside the decision of the appellate Court and restore that of the trial Court dismissing the plaintiffs' suit, with costs throughout. Leave to appeal is refused.

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