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Colonial Cases

Dienfeld v. Dienfeld, 1933

[family law - ecclesiastical courts]

Dienfeld v. Dienfeld

District Court, Jerusalem
1933
Source: The Palestine Post, 10 April 1933

 

THE DISTRICT COURT OF JERUSALEM.

Dienfeld v. Dienfeld

(Civil Case No. 401/32.)

PROCEDURE OF ECCLESIASTICAL COURTS.

"Illegal Assumption of Jurisdiction."

   His Honour the President delivered an interlocutory judgment in which he subjected the methods adopted by Ecclesiastical Courts to severe criticism.  His Honour said that the time had now come when he should openly criticise the methods adopted by some of the Ecclesiastical Courts, who in some cases had unlawfully assumed jurisdiction.  In the present case the Petitioner, a foreigner, brought an action claiming from her husband (1) the custody of the minor children and (2) maintenance.  The husband disputed the jurisdiction of the court on the ground that the Petitioner had already submitted to the jurisdiction of the Rabbinical Court, who had given a decision on the matter, and the case was res judicata.  After hearing evidence including that of the Rabbi, who presided over the Rabbinical Court, His Honour held that there was no submission to the jurisdiction of the Ecclesiastical Court by the Petitioner.

   The following is a full judgment:-

   Interlocutory Judgment.

   Petitioner Mrs. Sarah Dienfeld, an American Citizen, is petitioning this Court for an Order against her husband Jacob Dienfeld (1) granting her custody of her minor children Abraham Yehezkel Dienfeld and Rachel Dienfeld and (2) an adjudgment ordering her husband to pay L.P. 8.- per month on account of the maintenance of the said minors and a further sum of L.P. 11.- (on account of tuition fees and necessaries) expended by Petitioner on the minor Rachel.

   At the first hearing of the Petition on the 9th September, Respondent challenged the jurisdiction if this Court on the ground that before lodging her petition the petitioner had brought an action in the Rabbinical Court against her husband, the Rabbinical Court had decided the matters in dispute between husband and wife and had pronounced a judgment the terms of which did not apparently please petitioner.  Petitioner denied having instituted proceedings in the Rabbinical Court and declared that it was respondent who instituted proceedings in the Rabbinical Court against her, obtained a judgment by default and tried to execute the judgment.  In their judgment by default that Rabbinical Court had thought fit to state that she was not a religious woman; she resented the accusation and went to see Rabbi Frank, qua Rabbi but not qua Judge of a Rabbinical Court.  She further declared that she made it quite clear to Rabbi Frank she did not recognize the rabbinical Court as having jurisdiction over her and that the rabbinical Court had no authority to give the second judgment which was produced by the Respondent in this Court.

Onus of Proof.

   After hearing the advocates of both parties at length I gave an interlocutory Judgment in which I held that the onus of proving that Petitioner did submit to the jurisdiction of the Rabbinical Court was in the first place on the Respondent.  I further held that the certified true copies of the judgments of the Rabbinical Court produced by Respondent did when read together raise a rebuttable presumption that the Petitioner did submit to the jurisdiction of the rabbinical Court.  I gave the petitioner an opportunity to produce evidence to rebut the presumption and I gave respondent an opportunity to produce further evidence if he so desired, in support of his contention that petitioner did submit to the Jurisdiction of the Rabbinical Court.

   Petitioner gave evidence and denied that she consented to the jurisdiction of the Rabbinical Court.

Rabbi's Evidence.

   Rabbi Frank was called by the Respondent; he insisted that petitioner did consent to the jurisdiction of the court over which he presided. 

   At the conclusion of Rabbi Frank's evidence Petitioner's Advocate argued for the first time that the Beth Din, presided over by Rabbi Frank, was not a competent court. The question raised at the eleventh hour being of considerable importance both advocates were allowed to submit their arguments on the point in writing.

   Two questions have therefore been put before me:

  1. Did Petitioner submit to the Jurisdiction of the Rabbinical Court?
  2. Was the Beth Din presided over by Rabbi Frank a competent Court?

   I will deal with the first question.  I am faced with the evidence of Rabbi Frank and Mrs. Dienfeld.

   The position is a delicate one; I do not think that Rabbi Frank would tell a deliberate lie in Court. I believe he considers that Mrs. Dienfeld did submit to the jurisdiction of the Beth Din of her own free will or that he at any rate persuaded her to do so, and that in either case the court over which he presided had jurisdiction.  On the other hand I am not totally convinced that Mrs. Dienfeld did ever intend to submit to the jurisdiction of the rabbinical Court, and I hold that the Respondent has not discharged the onus on him to satisfy me that the petitioner did submit to the jurisdiction of the Rabbinical Court.  It follows that I need not decide the second question; as to whether the Beth Din presided over by Rabbi Frank was a competent Court.  If it was not a competent Court the Rabbinical authorities would be well advised to put their house in order.

Methods of Ecclesiastical Courts.

   I feel that the time has now arrived when I should openly criticise some of the Ecclesiastical Courts.

   More than one case from different religious courts has come to my notice in which it is abundantly clear that not only has the particular Ecclesiastical Court assumed jurisdiction improperly and illegally, but having wrongfully assumed jurisdiction has  proceeded to give a very questionable judgment - in one case a patently dishonest judgment.

   I am glad to say that in the case before me I could be justified (at most) in thinking that the Rabbinical Court has snatched up a dispute between foreigners.

   The Rabbinical Court has only itself to blame for my finding in this case.

Methods of Submitting to the Jurisdiction.

   The Respondent was a well known American Citizen; (apparently her wishes to discontinue being an American Citizen.)

   Rabbi Frank states Mr. Dienfeld said he was no longer an American Subject, so we considered there was no need for the parties to sign a "submission."

   Further he stated: "I do not remember whether Mrs. Dienfeld was requested to sign a submission - Perhaps Yes - she did not sign a submission.

   Mrs. Dienfeld was not asked to submit a written complaint.

   No record of the proceedings was taken down in writing.

   It is not within my province to lay down rules of procedure in an Ecclesiastical Court; but if the jurisdiction of a Court is dependent upon the consent of all parties, the Court should in some form or another obtain a consent in writing to its jurisdiction before it enters into the merits of a case.   I should imagine that the Ecclesiastical Court of Appeal would be in a stronger position to do justice if a record of the proceedings in the Court of First Instance were available if required.

   Having held that I am not satisfied that Mrs. Dienfeld did submit to the jurisdiction of the Rabbinical Court it follows that I have jurisdiction to hear her petition which will be heard on 23 April 1933 when both parties should have in attendance any witnesses they wish to call.

   Messrs. Ohlshan and Schmetterling appeared on behalf of the Petitioner, Mr. Auster on behalf of the Petitioner.

 

Court of Appeal
1935 
Source: The Palestine Post, 23 February 1935

 

COURT OF APPEAL.

Before: Their Honours, the Senior Puisne Judge, Baker J., Khayat J.

Joseph Dienfeld, Appellant, Cross-Respondent

v.

Sara Dienfeld, Respondent, Cross-Appellant.

C.A. 163/33.

JURISDICTION OF RABBINICAL COURT.

PROOF OF CONSENT.

The Court of Appeal, in setting aside the judgment of the District Court Jerusalem given on August 22, 1933, in CDC Jm 401/32 and 230/33 heard together, held, inter alia, (1) that, on the evidence, the Respondent had submitted to the jurisdiction of the Rabbinical Court (2) the District Court had power to hear the two actions together and give a single judgment in respect of them.

   The relevant facts are set out in the judgment.  Part of the Proceedings in the District Court were reported in The Palestine Post on April 10. 1933.

   For the Appellant: E. D. Gotein.

   The Respondent appeared in person.

   Judgment delivered on February 12.

   Judgment.

The judgment which gives rise to this appeal was delivered by the District Court of Jerusalem constituted by the British President sitting alone under Article 61 of the Palestine Order-in-Council 1922, in respect of two actions brought by  the present respondent, Sara Dienfeld, (thereinafter described as the "Respondent,) against the present Appellant, Joseph Dienfeld, hereinafter described as the "Appellant."

Claim in First Action.

In the first of these actions, filed on 4th November, 1932, the Respondent claimed:

  1. The custody of Abraham Yehezkel Dienfeld and Rachel Dienfeld the minor children of the Appellant and Respondent;
  2. A sum of L.P. 8 a month as maintenance of the said minor children; and
  3. A sum of L.P. 11 expended by the Respondent for tuition and necessaries for the said Rachel Dienfeld.

Claim in Second Action.

In the second action, filed on the 23rd June, 1933, the Respondent claimed:-

  1.  An order of separation from the Appellant; and
  2.  L.P. 4 a month alimony.  Both permanently and pendente lite.

District Court Order.

The District Court ordered that these actions be heard together and on 23rd August, 1933, made the following order in respect of them:-

  1. The Petitioner Sara Dienfeld shall no longer be bound to cohabit with the Respondent Joseph Dienfeld and shall be entitled to live separate and apart from him.
  2. She shall be given the custody of the daughter Rachel Dienfeld for whose maintenance the Respondent is hereby ordered to pay the sum of L.P. 2 per mensem from the date of the institution of the action for judicial separation, i.e., 1st November, 1932.
  3.  The Respondent is further ordered to pay the sum of L.P. 4 per mensem from the date of the institution of the action for judicial separation, i.e., 22nd June, 1933, for the support of the petitioner during such time as she continues to live apart from him, with costs and advocate's fees of L.P. 2.-
  4.  The Respondent is given the custody of the son Abraham Yehezkel.
  5.  It is further ordered that the Petitioner and the Respondent are to allow one another reasonable access to the children at all times during the continuance of this order, and that at least four times during the year they are to provide such facilities as are necessary to enable the two children to meet together.

   Wilful failure on either of their part to obey term of this order will entitle the other party to supply to the Court for the rescission of the whole order.

Against this judgment, the Appellant has appealed and the Respondent has filed a cross-appeal.

Appellant a Foreigner?

The first ground of appeal put forward by the Appellant is that the Court had no jurisdiction to hear these actions as there was no evidence before the Court that the Appellant was a foreigner within the meaning of Article 59 of the Palestine Order-in-Council, 1922.

   It is, however, admitted that the Appellant was at one time naturalised in the United States of America, and hence it was for the Appellant to prove that he has, as he alleged, lost his American citizenship.

   There is no evidence before the Court to that effect, and the objection therefore fails.

Question of Consent.

The Appellant also challenged the jurisdiction of the district Court on the ground that both patties had consented to the matters at issue between them being tried by the Religious Courts by virtue of Article 65 of the Palestine Order-in-Council, 1922: and that the Rabbinical Court had in fact heard the case and had given judgment thereon.  The Appellant does not suggest that the Respondent ever signed any written submission, but maintains that the respondent's conduct clearly showed that she submitted to the jurisdiction of the Rabbinical Court.

   This question was argued at length before the district Court which, after hearing the evidence of the Respondent and Rabbi Frank, one of the Rabbis by whom the judgment was given, was not satisfied that the Respondent had submitted to the jurisdiction of that Court.

Evidence of Submission.

From the evidence before the District Court, it appears that the Appellant applied to the Rabbinical Court for a decree of separation from the Respondent. His application was heard in the absence of the Respondent and decree of separation was pronounced in default. No copy of this Decree is before this Court, though it would appear from the judgment dated 3rd April, 1933, that a copy was produced in the District Court.

   Subsequently the Respondent applied to the Rabbis to have this decree set aside. The Respondent's statement, which the District Court appears to have accepted, was that she applied to the Rabbis as Rabbis and not as a Court.  In consequence of her application she was summoned to and attended several audiences by the Rabbis at which the Respondent was also present; and eventually a Rabbinical Decree was issued, dated the 26th Elul, 5692.  A copy of this decree is in evidence and the translation begins as follows:-

In the action before us between the representative of Mr. Joseph Dienfeld and his wife Sara Dienfeld regarding her claim against him for the payment of alimony and maintenance of the child Yehezkel and the daughter Rachel, the said Mr. Joseph Dienfeld replied that he would be willing to have the children in his house in order to bring them up according to the Jewish rites.  Plaintiff said that her husband, owing to his age, is not capable of bringing up small children, and she accordingly asks that he do pay a substantial sum for their maintenance.

The decree directs that the son shall be sent to an Orthodox Institution; and that the father (the Appellant) shall pay to the mother (the Respondent) L.P. 3 per mensem for the maintenance of the daughter, so long as the father does not take her to an appropriate institution to be brought up.

   The District Court held that:-

   "the certified true copies of the judgments of the Rabbinical Court (Beth Din)produced did, when read together, raise a rebuttable presumption that the petitioner (the present Respondent) did submit to the jurisdiction of the rabbinical Court (Beth Din),"

and gave the petitioner an opportunity to rebut the presumption.

   So long, however, as the decree of the 26th Elul, 5692, has not been set aside by an Appellate Court, it appears to us to afford conclusive proof that the Respondent did apply for payment of alimony and maintenance; and she must be held to have known that such an order could only be made by a Court, and could not be made by Rabbis as Rabbis.

Respondent Submitted to Jurisdiction.

With reference, therefore, to the evidence given by Rabbi Frank, we must hold that the Respondent did submit to the jurisdiction of the Rabbinical Court by which the decree was issued.

   Provided, therefore, that the Rabbinical Court before which the parties appeared was competent to determine the matters brought before it, the District Court has no jurisdiction with regard to these matters.

   The question of the competence of the rabbinical Court was raised before the District Court, but no decision was given thereon in view of the District Court's finding that there had never been a valid submission by the Respondent; and consequently this question has not been raised before us, and remains for determination by the District Court.

   As regards any claims which the District Court may hold that the Rabbinical Court was in competent to decide, or which were not submitted to that Court, the District Court must exercise jurisdiction in accordance with the personal law of the parties at the date when  action was brought, that is to say, the law of the State in which the Appellant was then naturalised: and before such jurisdiction can be exercised, evidence of the law of such State as applicable to the matters in dispute must be furnished.

Two Actions Properly Heard Together.

    The Appellant has also raised the object that the District Court had no power to hear the two actions together and to give a single judgment in respect of them.  Where, however, as in the present case, the actions are between the same parties in respect of claims which might have been included in a single action, and raised issues some off which are common to both actions, we know of no rule preventing the Court from hearing the two actions together, if that course, in the opinion of the Court, is conducive to the speedy administration of justice.

   The Respondent has also appealed against the judgment of the District Court in so far as it rejects her claim to the custody of her son.  To this claim the ruling already given will also apply.

    The judgment of the District Court is set aside and the case remitted for completion in accordance with this judgment.

   Costs will follow this event.

   It is to be observed that among the matters mentioned in the Decree of 26th Elul, 5692, as having been brought before the rabbinical Court by the Respondent was a claim for alimony, but no decision upon such claim is included in the Decree, nor is any reason stated for excluding this claim from the operation of the Decree.

      We think it also desirable to observe that the difficulties of this case have arisen largely from the procedure of the Rabbinical Court, where, as appears from the evidence of the presiding Judge, Rabbi Frank, no record is taken of the proceedings.

   In a Court, the decrees of which are subject to appeal, this is clearly an unsatisfactory state of affairs; and the question of procedure in Rabbinical Courts of the First Instance calls, in our view, for the careful consideration of the Rabbinical authorities.

Written Consent Desirable.

In particular, it seems to us highly desirable that before any matter of personal status affecting any foreigner other than a Moslem is tried by the Court of any Religious Community under Art. 65 of the Palestine Order-in-Council 1922, the fact that such Court can only exercise jurisdiction with the consent of the foreigner shall be explained to him and that he shall sign a written consent to the exercise of such jurisdiction.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School