A v. B

C.A. 447/58

 

A. v. B. AND ANOTHER

 

In the Supreme Court sitting as a Court of Civil Appeal

 

Olshan P., Sussman J., Landau J., Berinson J. and Witkon J.

 

Judgments and Orders-Declaratory Judgment-Discretion of Court­ No proper purpose shown-Possibility of prejudice to third parties.

 

The appellant claimed an order in the District Court against the  respondents,  who were husband and wife, declaring that he was the natural father of a child born to the wife and registered as that of the respondents. The claim was struck out in limine and the appellant appealed.

 

Held, dismissing the appeal,

 

Per Olshan P. The granting of a declaratory order is in the discretion  of  the court, and having regard  to  the nature of the claim, public interest and  morality,  the prejudice  to the status and interests of the child who was not even a party to the proceedings, and the fact that the appellant had not even told the court for what reason the order was required, the claim was rightly struck out.

 

Per Landau J. An action such as this, in which the court is asked to approve an act which offends against public morality with all the  harm  which  it  involves  for  the welfare of the child and for the adults concerned, and without it being shown that a proper purpose is being served, is a gross abuse of the process of the court and will not be heard.

 

Per Witkon J. An action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained, and as the appellant had not disclosed any legitimate interest worthy  of  judicial  protection  that alone was sufficient to deny him access to the courts.

 

Per Berinson J. (Sussman J. concurring). The relief claimed is in the discretion of the court, and it is inconceivable that any court will grant the appellant's request which en­ dangers the status and future of a minor who is not a party to the action and cannot defend himself, when the appellant has not shown in his claim what benefit he will derive therefrom.

Israel cases referred to :

(1)          C.A. 238/55-Aharon Cohen and Bella Bousslik v. Attorney­ General (1954) 8 P.D. 4; S.J., Vol II, 239.

(2)          C.A. 291/56-Ya'akov Szczupak v. Shmuel Rapaport and 4 others

(1959) 13 P.D. 39.

(3)          C.A. 16/55-Marasha Ltd v. Albert Massri (1957)  11  P.D. 126. 350

(4)          File 226/5714-Husband A. v. Wife B. (1954) Rabbinical District Courts Judgments, Vol. 1, p. 145.

English cases referred to :

(5) Yoo/ v. Ewing (1904] 11. R. 434.

(6)          Holman and others v. Johnson, alias Newland (1775) 98 E.R. 1120.

Trichter for the appellant.

Levitsky for the respondents.

OLSHAN P. By virtue of secs. 38(b) and  40 of  the  Courts Law, 1957, it has been decided to forbid the publication of the names of the parties and of the child involved in these proceedings.

This is an appeal from a judgment given in the District Court of Tel Aviv-Jaffa on  December  4, 1958 by Lamm J. In terms of this judgment a claim filed by the appellant against the respondents for an order declaring that he, is the natural father of a child registered as that of respondents, was struck out.

It is not in dispute between the parties that the respondents, husband and wife, have been lawfully married for more than ten years and that  the child in question was born in December 1953.

The appellant, in his action, bases his claim  on  the allegation that he maintained sexual relations with the second respondent during the above-mentioned period, and also did so nine months before the bi th of the child.             .

The defence is based upon a complete denial of all the appellant's allegations, and includes the averment "that the action was commenced vexatiously and/or for defamatory and denigratory purposes only.

The  plaintiff  himself  requested  the  dismissal  of  a  similar action pre­ ,

viously filed· by him in this Honourable Court in  Civil  File  582/58. The earlier action was dismissed by a decision of the Registrar on 22.4.58."

The judgment, which is the subject of this appeal, states:

"I agree with Mr. Trichter (counsel for the appellant) that an action should not be struck out when there are prospects that the court will decide in favour of the plaintiff. But this is not so in the present case. The action is in fact direc­ ted towards obtaining a declaratory judgment which will de­ termine that the minor is illegitimate. I do not think that the courts of this country are entitled to grant relief to a person so as to injure the rights of a child, even if! were to accept the allegations in the claim as true, although a situation is con­ ceivable in which the interests ofa child may demand such a declaration, especially where an unmarried woman is concerned. I find, therefore, that the claim is misguided and I strike it out as not disclosing a cause of action."

Counsel for the appellant submits that the learned judge was not entitled to strike out the claim without affording the court an opportunity of considering the evidence which the plaintiff could adduce in order to obtain the declaration which he sought.

This would appear, at first sight, to be an argument of substance  and as a rule the courts are not anxious to exercise the power given to them by Rule 21 of the Civil Procedure Rules. In the result, however, I have reached the conclusion that the decision of the  learned  judge should not be disturbed. As he correctly states in his judgment, it is inconceivable that a court considering a claim such as this will exercise its discretion in favour of the plaintiff and agree to grant a declaratory judgment as sought, for the court must apply the utmost care when a minor is likely to be adversely affected.

But it is not this opinion which was expressed by the learned judge that served as the ground for his striking out the claim. From the context it is clear that the decisive reason for his ruling was that which appears in his concluding statement:

"I therefore find that the claim is misguided and I strike it out as not disclosing a cause of action."

This accords with the provisions of Rule 21.

Counsel for the appellant criticizes this conclusion ai:d it would appear, at first glance, that there is substance in this criticism.

The criterion for striking out a claim pursuant to Rule 21 is that the judge who is asked to strike out a claim under this Rule must assume  that the plaintiff will succeed in proving at  the trial all the facts alleged in his statement of claim. Upon this assumption, the judge is to ask himself the question  whether,  in law,  the facts  thus  proved  constitute a basis for the right asserted in the statement of claim. It is only in a case where the judge may properly say that, though the alleged facts are established by the evidence, the right asserted is not legally recognised, that he may exercise the power given him by Rule 21 and strike out the claim. If we are to apply the above criterion in the present case, the strictures of appellant's counsel would appear to be sound.

These are the facts upon which the appellant bases his claim:

(a)          The male and female defendants have been married for more than ten years.

(b)          From July 1952 the plaintiff had maintained intimate relations with the female defendant and cohabited with her.

(c)           At the end of February or early March 1953, i.e. about 9 months before the child was born, the plaintiff and the female defendant  spent six days in Shefayim and had sexual relations there.

(d)          The male defendant was impotent and/or otherwise  incapable of procreation.

- (e) Since July, 1952, the female defendant had cohabited  with no one  except the plaintiff.         ·

(f)           Relying on the facts set out in the statement of claim or some of them the petitioner believes and claims  that he is the natural father  of the child.

(g)          The defendants have never denied the plaintiff's allegations concerning his paternity of the child and the female defendant has not even really rejected his demand that the child be surrendered into his custody.

If it be assumed that the plaintiff will prove all these facts, he will thereby establish that he is the child's natural father. Accordingly appellant's  counsel  questions  the  ,action  of  the  learned   trial  judge in striking out the claim upon the ground that it does not  disclose  a cause of action.

Had this not been an action for a declaratory  judgment-i.e. for an equitable remedy the granting of which lies within the court's dis­ cretion-I would, perhaps, have found more substance in the appeal.

As I have said, the respondents deny most emphatically all and each of the allegations and assert that the claim was filed "vexatiously and/or for defamatory and denigratory purposes only". If there is  only  a scintilla of truth in the respondents' denials, the filing of the claim is singularly scandalous. One appreciates the concern of the respondents about the unsavoury details which the appellant was ready to put to the court together with all the "evidence" and "examinations" and the pernicious effect this will have upon the child. Their concern is under­ standable even if in point of truth they are quite confident that the appellant would ultimately fail. But in the light of the criterion for applying of  Rule  21 we have  to deal with  the appeal  without  regard  to the denials of the respondents.

In as far as granting a declaratory judgment lies within the court's

discretion-and a plaintiff may not demand this remedy as a vested right-then, even if the claim had not  been  struck  out  by  virtue  of  Rule 21 and  the  matter  had  come  to  trial,  the  court,  having  regard to the nature of the claim, would have had the power to dismiss it in limine before hearing the evidence, upon deciding that bearing in mind the nature of the claim, public interest  and  morality  and  the prejudice to the interests and status of the child (who is not even a party to the action) it is not prepared to use its discretion in favour of the plaintiff to grant him the relief he claims.

I have not found in English or  American  law  a single  aase  like the one before us, of a person who purports to  be the father  of a child  by alleging illicit sexual relations with a married woman and seeks a declaratory judgment which necessarily involves proclaiming that the child is illegitimate.

In as far as granting a declaratory judgment is discretionary, the court may consider the plaintiff's conduct even from a moral viewpoint and pose the question whether in equity the plaintiff deserves the relief which the judge is by law competent, but not under a duty, to grant.

It is not to be overlooked that in declining to grant a declaratory judgment at the outset of the trial, the court does not decide the merits of the dispute between the parties. If the case reached the stage of hearing and the court had announced at the commencement that no matter what the evidence will be it is not prepared to grant the relief prayed for, be­ cause in equity the plaintiff does not merit it-the court would not there­ by have decided the paternity question.

The discretionary nature of the relief in granting a declaratory judgment as explained above is to be gathered from the many precedents cited by the Deputy President (Cheshin J.) in his judgment in Cohen and Bousslik v. Attorney-General (1).

After mentioning all the authorities, the Deputy President aid:

 

"The court, in  considering  all  the  circumstances  of the case before it, particularly as we are dealing with relief which originated in the Courts of Equity, cannot, and should not, disregard the behaviour of an applicant and the back­ ground of his actions which, he submits, have created the rights in respect of which he seeks an authoritative declara­ tion from the court."

LikewiseSussmanJ. said (atpp. 36-37):

"Iam not prepared to dispute the principle enunciated          by Justice Cheshin, namely, that in considering whether or not to grant declaratory relief, the court may take into account the behaviour of the parties, as reflected in the actions which constitute the basis which serves for their application to the court."

Silberg J. was also of the same opinion. The two last-named justices only disagreed with the judgment of the Deputy President on the question whether from the point of view of the public interest the relief sought should be granted.

Does the plaintiff come to court with clean hands in the present case-as reflected in the statement of claim itself?

He says: "I maintained sexual relations with  a  married  woman. The child born five years ago and registered as the lawful child of the defendants is illegitimate. He is my son. Please make a declaratory judgment confirming my allegations and proclaim me as the child's father." He does not even trouble to tell  the court why  he requires such a declaration. The question of the appellant's conduct arises  not  just with regard to the female defendant but vis-a-vis the child who was not made a party to the proceedings at all, and particularly with regard to public morality.

To my mind there is no shadow of a doubt as to the reaction.of the court in connection with the exercise of its discretion in favour of a plaintiff such as this.

In Szczupak v. Rapaport (2), also a case of a declaratory judgment, no problem involving public morality arose. Nevertheless, the Coqrt of Appeal declined to deal with the lower court's conclusion regarding the very ght which the appellant had claimed and stated (at p. 40):

"As indicated, the appellant claimed a declaratory judgment. When a plaintiff makes such a claim, the burden  is upon him not merely to prove his right but also tQ convince the court that the circumstances demand this right to be determined by means of a declaratory judgment alone. The appellant here (as well as in the District Court) did not deny that it is possible for him to connect with the municipal sewage system without any difficulty and that the first, second and third respondents have agreed that it be done at their expense. That being so, the plaintiff has not succeeded in con­ vincing the court how he will be aggrieved or prejudiced if the right which he claims will not be established by means of a declaratory judgment. On the contrary, his insistence is likely to arouse a suspicion, or more correctly an impres­ sion-and we wish to emphasize that this has not been proved

-that here the question is one of scoring a triumph or of other motives which are not clear to us. Since on the one hand the appellant has not succeeded in  convincing  the court of the necessity for the relief sought, and since on the other hand his attitude tends to create the impression aforesaid, it follows  that  he  has  not  discharged  his  duty of convincing us that he should be granted a declaratory judgment. We have therefore decided to dismiss the appeal accordingly."

A fortiori when the petitioner comes with unclean hands, as above explained. Pomeroy in Equity Jurisprudence (5th  ed.) Vol.  II,  p. 91, sec. 397, speaking of the principle of clean hands in connection with equitable remedies says:

_    "It    says that  whenever  a  party, who as actor seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of  the court will be shut against him in limine; the court will refuse to interfere on his behalf, to  acknowledge  his right, or to award him any remedy."

At page 117, section 402, he says:

"The principle is thus applied in the  same  manner  when the illegality is  merely  a  ma/um  prohibitum,  being in contravention to  some  positive  statute,  and  when  it  is a ma/um in se, as being contrary to public policy or good morals."

And at page 133, section 402e:

"Even in this situation, however, it has been held that a person who marries another, knowing that the latter has a husband or wife living, is not an 'innocent or injured party', and the courts will refuse a formal decree of nullification."

 

This is very close to the case before us, for there is no doubt that the purported marriage is invalid, although the court will decline to assist him by granting relief which lies in its discretion.

And at page 143, section 404:

"A court of equity acts only when and as conscience commands; and, if the conduct of the plaintiff be offensive t9 the dictates of natural justice, then, whatever may be the rights he possesses, and whatever use he may make of them in a court of law, he will be held remediless in a court of equity. Misconduct which will bar relief in a court of equity need not necessarily  be of such nature as to be punishable as a crime or to constitute the basis of legal action. Under this maxim, any willful act in regard to the matter in litigation, which would be condemened and pronounced wrongful by honest and fairminded men, will be sufficient to make the hands of the applicant unclean."

Courts are particularly circumspect and exercise abundant caution when the relief claimed is likely to affect the status of a child, such as to att h to him the status of an illegitimate person.

In A v. B. (4) a case decided by  the Rabbinical  Court  of Tel Aviv, it was said (at p. 149):

"As for the plaintiff, it is clear that a person is not be­ lieved to say of the child of a woman married to another that the child is his, not the husband's, so long as the latter does not say that the child is not his."

In most instances, this problem arises when a  man  reputed  to be  the  father  or  to  whom  paternity  is  attributed,   endeavours  to  obtain a declaration that he is not the father. Even in such a case, when the plaintiff does not base his claim upon grounds which clash with public morality, his course will encounter many obstacles, if it involves a dec­ laration that the child is illegitimate.

Borchard on Declaratory Jqdgments (2nd ed.) p. 486, writes:

 

"On the other hand while allowing the child  to protect its status through declaratory actions some British Courts have refused to allow a putative father to bastardise  a child by securing a judicial declaration that a child  born  to his wife was not his -on the theory that he was adequately protected by the defence available to him should the child claim maintenance. Yet there seems a good reason why the plaintitrs legal interest in rejecting the imputation of father­ hood should have been judicially protected by declaration.

The Appellate Division in New-York in a recent case  pointed out a distinction between a  declaratory  proceeding to establish illegality of a child, in which the child is a nec­ essary party, and a proceeding in the Domestic Relations Court for an order of support,  which is not an adjudication  of illegality, if the husband is held  not  to  be the father of  the child."

 

An instructive illustration  of  the  matter  under  consideration  is the case of Yoo/ v. Ewing (5). There,  the plaintiff  filed a claim against one defendant who had formerly been his wife and from whom he was divorced and against a second defendant who was the young  female child of his former wife. In this action he asked for a judgment declaring that the child was not his daughter and also as against the first defendant an order prohibiting her from representing the child as his daughter.  They had been married in 1894 and following the marriage a son was born. The parties separated in March 1895 and thereafter no longer cohabited as husband and wife. The wife and the son lived in a town  near which the plaintiff lived. In April 1898  the  plaintiff  sailed  for India and returned in the year 1900. The female infant was born in December 1898 and the mother registered her as the daughter of the plaintiff. She did  not  inform  the  plaintiff  of  his  birth  at  all. In  1900 a divorce decree was granted on grounds of  her  adultery  and  custody of the infant son was given to the mother pursuant to an agreement between them, which recited that the son was the only child of their marriage. When the action was begun, the mother was married to  the man with whom she had committed adultery.

The judgment (at p. 811) reads:

. "It was  sought  to· show  not  alone  that  the  plaintiff was not the father of the child, but that another person was. Now the presumption oflegitimacy in the case of a child born during wedlock is not one juris et de jure.... But the pre­ sumption is of enormous strt:ngth, and will not be rebutted in an ordinary case, where husband and wife live together, by mere evidence, or even proof, that a person or persons other than the husband had improper relations with the wife. In such a case the law on the clearest grounds of public  policy and decency will not allow an enquiry as to who is the father. But it might be otherwise here, for this is not in this respect an ordinary case, as the husband and wife were not living to­ gether under the same roof."

Notwithstanding the admissions of the defendant which were proved, the action was dismissed and (at page 812) it was said, following a suggestion that the result might have been different, had this been a suit for divorce:

"But it is a suit mainly and really not against Mrs. Ewing but against the other defendant, the infant. The decree sought for against her is a decree in rem; that is a decree that would be final, and binding and conclusive."

The judgment later explains that despite the rule (similar to  our rule) concerning the power to make declaratory judgments, even without additional relief, a court will not  render  such  judgments  if  they  are not required in connection with positive rights at the time of the action. And no declaratory judgment will be given if it is only required by the plaintiff in connection with what appears to him as future or possible future rights.

"Nor must anything I have said to be  taken  to  mean that this court has not ample power to decide questions of legitimacy, when necessary, as for instance, when a claim is raised in which legitimacy is a material element in determin­ ing rights. If an action were brought against  the  plaintiff here for the maintenance of  the  defendant  Dorothy,  it would be open to him to contest it on this ground  that though born during  wedlock,  the  defendant  was  not  in fact his child" (at p. 816).

From the foregoing I have no doubt that had the appellant's action come to Lamm J. for trial (and not by way of a motion to strike out pursuant to Rule 21) he would have been entitled even at the outset, relying simply on the statement of claim, to inform the parties that he was not prepared to exercise his discretionary power in favour of the appellant in order to assist him by recognizing his paternity  by means  of granting a declaratory judgment, because he did not regard him meritorious as explained above.

 

The only question then that arises in the appeal before  us is merely a procedural question, namely, was the learned  judge  permitted  to adopt this attitude within the framework of Rule 21, upon  the ground that no cause of action  was  disclosed.  In  other  words,  does  the fact or circumstance showing that a plaintiff is, or is not, deserving of relief which lies within the discretion of the court constitute an element of the cause of action.

In an action of the kind now before us, this fact may form an element in the cause of action in a negative sense. Let me explain. In an ordinary action for a declaratory judgment the burden is upon the plaintiff, as stated in Szczupak v. Rapaport (2), "to convince  the court that the circumstances demand this  right  to  be  determined  by  means of a declaratory judgment alone."  Nevertheless,  if  the  plaintiff  does not expressly set out in the statement of claim the circumstances which entitle him to discretionary relief, it is almost certain that the action cannot be struck out on  the basis of  Rule 21. If  the statement  of claim is silent in the matter, the court will say that since prima facie there is nothing withi'.n the statement of claim itself to indicate that the plaintiff is not entitled to the  assistance  of  the court, such  omission  is  not  to be regarded as a defect in the statement of claim so as to permit the exercise of the power given by Rule 21. In such a case, if the defen ant seeks to strike out in reliance on Rule 21, the court will refuse the application, and will say that the question whether the plaintiff is en­ titled to discretionary relief has to be resolved  in  the course of the trial in the light of the circumstances which unfold themselves and on the evidence adduced by the parties with reference to the right itself claimed by the plaintiff.

Only in a very rare case, such as in the one before us, when the statement of claim itself discloses circumstances which show con­ clusively that the court must refrain from assisting the plaintiff by exercising its discretion in his favour-even on the assumption that the plaintiff can prove  the facts  set  out in  the statement  of  claim-in  such a case there is, in my opinion, a possibility of applying Rule 21, because what is sought by the plaintiff will not be granted him even if he should prove these facts.

Just as in the normaf situation the reason for striking out  the claim is that no purpose will be served by continuing with the proceedings, because even if the plaintiff proves the facts 'the right claimed will not thereby be proved, so here the reason is that there is no purpose in dealing with the action on its merits because even if the plaintiff proves the facts, his right to obtain a declaratory judgment will not thereby be established.

 

In ah action for sp.ecific performance, for example, if the defendant applies to strike out the  action  under  rule  21,  upon  the  contention that the plaintiff has not come with clean hands,  his application  will fail. The court will then say that since there is nothing in  the statement of claim to indicate the absence of "clean hands," but only the defence

alleges this, it is not a matter of. striking out the action and the issue in dispute, like all other issues, must be decided in the course of the trial and after the evidence is heard. But if the statement of claim itself discloses facts which point to the plaintiff's "unclean hands," the defendant can, in my opinion, move to strike out the action. The fact that here the "unclean hands" according to the terms of the claim arises with respect to public morality and not merely to the defendant does not alter the situation.

Moreover, in an instance such as the one before us, it seems to me that equity even compels adoption of the means provided in Rule 21, for not only will no purpose be served by_ leaving the action to go to trial in the usual manner, but definite harm will result therefrom.

If the claim is not struck out, the plaintiff can deliver interrogatories and compel the defendants to answer the questions in accordance with the provisions of the Civil Procedure Rules and this very thing will defeat the reason for which the court will refuse to use its discretion in favour of the plaintiff.

The plaintiff in the present case has already delivered such in­

terrogatories which contain questions such as the following:

To the male defendant:

Do you believe that the child is your natural child and that you are his natural father?

Is it true that you are impotent? Is it true that you are sterile?

Have you been cured of your sterility?

Is it true that Professor Zondek said that you are incurably sterile?

Is it true that various persons have informed you that your wife was having sexual relations with the plaintiff?

 

To the female defendant:

Is it true that from July 1952 onwards you have maintained sexual relations with the plaintiff?

Is it true that the plaintiff is the natural father of the child with whom you were pregnant in the month of Septem­ ber 1952?

Is it true that you have had no sexual relations with anyone except the plaintiff?

Is it true that the plaintiff is the natural  father  of  the  chila with whom you were pregnant in 1953?

Is it true that  the  plaintiff  is  the  natural  father  of  the child to whom you gave birth in December 1953?

Is it true that your husband is sterile?

Is it true that since July 1952, and up to the time that the child was born, you had no sexual relations with anyone  except the plaintiff?

Have you had sexual relations from July 1952 to 1953  with  any person or persons other than the plaintiff and, if so, please state their names and addresses?

It is also to be noted that in reality the plaintiff's adversary in con­ nection with the action  for a declaration  of  paternity  is the child  who is not a party at all in the proceedings, and it is he whom the plaintiff seeks to have declared illegitimate, and this about four years after his birth.

I am of the opinion that the appeal should  be dismissed, and  that the appellant should be ordered to pay the respondents the costs of the appeal (includi g counsel's fees) in the aggregate sum of IL 300.

LANDAU J.  I agree  that  the appeal should  be dismissed.  For  myself, I see no need to rest the decision in this matter on  the discretionary nature of the claim for a declaration in accordance with the rules of equity. It is not the form of the prayer which is decisive here but the sub­ stance of the matter which the appellant is brazen enough to bring before the court. If his allegations are true, he has committed an act which of­ fends against public morality, and now he asks the court to give him its ap­ proval therefor, with all the harm which it involves both for the welfare of the child and for the adults concerned. This is an abuse of the process of the court which can hardly be exceeded, because "no court will lend its aid to a person who bases his cause of action upon an immoral  or illegal act", in the words of Lord  Mansfield  in  Holman  v. Johnson (6), which  I cited in  Marasha  Ltd.  v.  Massri  (3).  It  sometimes  happens  that  in a civil action the court undertakes an examination of matters which are contrary to law or morals, when required  to decide  an action  brought for a proper purpose.  But this appellant  has not shown in his statement of claim that he has any legitimate interest in washing his dirty linen before the court.

I am therefore of the opinion that this action was justly struck  out and my reason is that it is vexatious within the meaning of Rule 21 (d), and therefore not proper to be dealt with by the court.

 

WITKON J. I am also of the opinion  that  there  was justification  for dismissing thw action in limine, and that  because, in my view,  an action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained. The appellant has not disclosed any legitimate interest worthy of judicial protection, and this alone is sufficient to deny him access to the courts. The fact that we are here dealing  with  a  "delicate"  subject,  and  th t the appellant is not morally blameless tends to add weight to the above reason even though by itself it  is not, in my opinion, conclusive.  Had the appellant sought to prove his paternity of the minor for a legitimate purpose-e.g., in connection with a  matter  of  succession-the  court would certainly have been obliged to go into the details. But this is not the case in the present instance, and accordingly the learned judge was right in dismissing the action in limine.

BERINSON J. The plaintiff asks the court to declare that he is the father of the child to whom the female defendant gave birth at a time when she was the wife of another man. The plaintiff does not say why he requires this declaration. It is not to be supposed that a court of equity to whose discretion the granting of such a declaration is given will use its discretion in a case such as the present, in which, as it is possible to judge from the claim •itself, the declaration (if made) is likely seriously to prejudice third parties, without our knowing in what way it can be of advantage to the plaintiff. By "third parties" I do not include the female defendant who, according to the allegation of the plaintiff, maintained sexual relations with him whilst married to another. So far as she is concerned, there is nothing to prevent-either from a moral or any other viewpoint-the disclosure of the truth in court even if the truth is harmful and prejudices her and  her married  life. If  indeed  the allegation of the plaintiff is true, and at this stage we may not say that it is not true, the female defendant is not entitled to any special consideration by the court. Compared to her he is not affected with any more immorality or "unclean hands" than she is. It is therefore im­ possible, in my opinion, to say with certainty, or even to assume at the very outset, before hearing the substance of the case, that from the point of view of the possible harm to the woman the court would not have exercised its discretion in favour of the plaintiff, had he succeeded in proving all the allegations of fact which appear in his statement of claim.

But the matter does not only concern the woman but also and principally the child. What has this child been guilty of that his legal and social status should be allowed to be put into doubt without any  real need therefore? Is it conceivable that  any  court  will  decide  to  grant the plaintiff's  request  which endangers  the status and  future  of a minor who is no party to the actio-n and cannot defend himself, when the plaintiff has not shown in his claim what benefit he will derive therefrom? Had the plaintiff at least disclosed for what purpose he required the declaration and upon such disclosure  had there prima facie been  room  to weigh the possible harm to tJ;ie child against the possible benefit  to t}:le plaintiff, it might then have been proper to permit the action to proceed to judgment in the normal course. But the plaintiff did not do this. He has not disclosed his motives and reasons,  and  the claim  in itself is defective. It is like y to inflict grievous harm upon the child without our knowing that a comparable advantage will accrue to the plaintiff. Not everyone who wishes may come to court and obtain a declaratory judgment. The plaintiff has no right to a declaratory judg­ ment as a matter of course and on the basis of the claim such  as it is, even if it were fully proved, one cannot see that he will succeed in con­ vincing the court firstly that the relief claimed is essential and secondly that he is worthy of it.

I therefore agree that the appeal must be dismissed. SUSSMAN J. I concur in the judgment of Berinson J.

Appeal dismissed. Judgment given on May 25, 1959.