Yagya Bedi v. Hari Gobind Bedi
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FCMC000023/1974 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO.23 OF 1974 -----------------
----------------- Coram: Liu, D.J. Date of Judgment: 21 January 1974 ----------------- RULING ----------------- 1. Mrs. Bedi filed a petition for separation, custody of the children and maintenance on the 14th January 1974. Before serving her petition, Mrs. Bedi applied ex parte for divers injunctions ordering her husband to remove himself from the matrimonial home, at Flat 101 Rocky Mount, Conduit Road, and restraining him from returning there to or using violence on the Petitioner and her children. I was informed that the matrimonial home was a flat of some 2,000 square feet in a post-war building. There was no evidence one way or the other, but there was every indication that the rental thereof would be in excess of $10,000.00, per annum. Therefore, further clarification on the rental value would seem to offer little in favour of the Petitioner, and the proceedings proceeded on the assumption that the matrimonial home, subjectmatter of the interim injunctions prayed for, was not within the usual jurisdiction of the Court. The affirmations in support of the ex parte summons established a prima facie case, and the only issue was whether the Court sitting in its divorce jurisdiction had jurisdiction to entertain the application. In general, the equitable jurisdiction of the District Courts is limited to matters set out in s.37 of the District Court Ordinance. For injunctions, they are further governed by s.52 of the same Ordinance. Suffice it to say that the District Courts have no jurisdiction to grant an injunction affecting immovable property with annual rental exceeding $5,000.00. The crux of the matter is whether the District Courts' jurisdiction to grant injunctions is more extensive in divorce proceedings. 2. I was greatly assisted by counsel, and I was sufficiently convinced to give a decision extempore. The petition filed by Mrs. Bedi had not been served, and naturally no Answer could have possibly been filed when the ex parte summons came before the Court. The Court was thus seized with jurisdiction in this matter as a divorce court. The jurisdiction of the Divorce County Courts in England to grant injunctions derives from s.74 of the County Courts Act 1959. See p.835 Rayden on Divorce 11th Ed. s.74(1) of the County Courts Act 1959 reads:
as ought to be granted or given in like case by the High Court and in as full and ample manner." 3. Our s.48(1) of the District Court Ordinance is in identical terms with s.74(1) of the Couhty Courts Act 1959. It was submitted that the District Courts sitting in limited divorce jurisdiction had power to grant injunctions under s.48(1) of the District Court Ordinance in as full and ample a manner as the Supreme Court and that s.51 of the District Court Ordinance enabled the exercise of like jurisdiction in Chambers. 4. In addition to s.48(1) of the District Court Ordinance, our District Courts are given express power to grant injunctions under s.52(1). s.48(1) must, for matters set out in s.37, necessarily be restricted by the limitations set out therein. s.52 is likewise restricted by its own provisions. It would appear that in divorce proceedings, a District Court's jurisdiction to grant injunctions stems from s.48(1) of the District Court Ordinance, which is, for matrimonial matters, unaffected by the limitations in s.37, and that the limitations in s.52(1) of the District Court Ordinance have also no application to s.48(1) as they are explicitly excluded therefrom by s.52(2)(b). s.52(2)(b) has in fact left unhampered the District Courts' general jurisdiction to grant injunctions under s.48(1) affecting matters (e.g. matters in a divorce suit) in proceedings other than those set out in s.37 for the time being within its jurisdiction. It would seem that in matters within jurisdiction the District Courts have also an unlimited jurisdiction in granting injunctions restraining the removal of any child of the family out of jurisdiction or legal custody under the Matrimonial Casuses Ordinance Cap. 179 or attempted illicit disposition of properly under s.17 of the Matrimonial Proceedings & Property Ordinance Cap. 192, but these were not issues for my consideration in this case. I was also referred to Jones v. Jones [1971] 1 W.L.R. 396 C.A. in which the Divorce County Courts' jurisdiction to entertain an application of a similar nature was not even challenged - although it was not clear in that case under what statute the application was made and whether the value of the Council house involved exceeded the Divorce County Courts' jurisdiction limit. 5. It has been said that the Court "in its matrimonial jurisdiction has to control situations and problems during the pendency of proceedings which are peculiar to it, and consequently at that stage cannot have too nice a regard for strict proprietory right." per Ormrod J. in Montgomery v. Montogomery [ 1965 ] p.46 at p.51. In this case, the pending divorce petition before the Court remained undefended at the time of the hearing of the ex parte summons, and the Court as a divorce court had jurisdiction to grant injunctions for the purpose of controlling the situations and problems between the spouses by virtue of s.48(1) of the District Court Ordinance which, as it was submitted, is not in any way restricted by the limitations in s.37 which deals with matters other than those in a divorce suit or by the limitations in s.52(1) which is excluded by paragraph (b) of its own subsection (2) from applying there to i.e. to s.48. Free from all limitations for equitable jurisdiction (s.37) and injunctions (s.52) in these divorce proceedings, this Court had jurisdiction to entertain the Petitioner's ex parte application for injunctions involving premises the annual rental of which exceeded $10,000.00. It need be pointed out, however, that, I have not had the benefit of any submissions advanced on behalf of the Respondent. Consequently, the injunctions were ordered to issue, on the usual undertaking for damages and with consequential directions, until the first hearing of the summons made returnable on notice to the Respondent on the 21st January 1974 or until further order.
Representation: Mr Jackson-Lapkin instructed by J.S. & M. for Petitioner. |