Public policy – Magistrate erred :Full Court granted possession to adulterous husband
THE Full Court in 1961 conceded that a magistrate erred when considering the application
of an adulterous appellant husband for, a dwelling to house himself, his mistress and their children. But after the appellant Pereira appealed to the Full Court, that Court, constituted by Chief Justice J.A. Luckhoo and Justice Sydney Miller allowed the appeal by Pereira with costs of the appeal to the Appellant. Appeal allowed.C. R. Wong for the appellant.M.C. Young for the respondent.
The Court had said: A magistrate is not precluded by public policy from granting an order for possession of a dwelling house (which is subject to the provisions of the Rent Restriction Ordinance, Cap.186) to a husband living in adultery and apart from his wife and lawful children where the husband requires the dwelling house as a residence for himself, his mistress and their children.”
Judgment of the Court: The sole point for determination in this appeal is whether a magistrate is, on the ground of public policy, precluded from granting an order for possession of a dwelling house (which is subject to the provisions of the Rent Restriction Ordinance, Cap. 186), to a husband living in adultery and apart from his wife and lawful children where the husband requires the dwelling as a residence for himself, his mistress and their children.
It was established to the satisfaction of the magistrate that the appellant’s application for possession was made bona fide and that it was reasonable. It would appear that the magistrate would have granted the appellant’s application for an order for possession, had he not considered that it would be contrary to public policy to do so as the applicant is a married man living apart from his wife and lawful children and requires the premises, the subject matter of the application, for a residence for himself, his mistress and their children.
The evidence established that the appellant has been living apart from his wife and their nine children for the past four years. His wife and their children resided in the appellant’s property while the appellant, his mistress and their five children resided in a dwelling house rented from some other person. At the time the appellant’s application was filed an order for possession had been made against him in respect of the house he was residing. By order of the court he was required to vacate the house not later than 1st July, 1960.
As a result he purchased the premises, the subject matter of this application, for use as a dwelling. The respondent was residing in those premises at the time of the appellant’s purchase. The appellant has found himself in these circumstances. He is obliged to give up possession of the premises in which he presently resides with his natural born children and his mistress. He obviously cannot take his natural born children to reside in the house in which his wife is presently residing with their nine children. The appellant nevertheless, desires to find a residence for his natural born children who are no doubt of tender years.
If not legally obliged to do so the normal obligation is clear.In such circumstances, it could hardly be against public policy for an order for possession to be made in his favour, despite the fact that his adulterous association with his mistress will continue there. It perhaps should also be noted that there is no evidence on the record of the circumstances under which the appellant ceased to reside with his wife.
We are of the opinion that the magistrate erred in refusing, on the ground of public policy, to make the order for possession applied for by the appellant. The appeal is allowed. The order of the magistrate is set aside and an order made for possession of the premises, the subject matter of the application, to be given by the respondent not later than July 1st, 1961. Costs of this appeal to the appellant. Appeal allowed.
