In W. v. W., 94 N.J. Super. 121, 226 A.2d 860 (Ch.Div. 1967) the court ruled that given the clear evidence of the physical inability of the wife to engage in intercourse, it would be impossible for her to commit adultery. In H. v. H., 59 N.J. Super. 227, 157 A.2d 721 (App.Div. 195 9) a complaint for divorce on the dual grounds of adultery and extreme cruelty was filed based upon the wife's lesbian relationship. The adultery count was voluntarily dismissed at trial and the alleged acts were found to constitute a cause of action for divorce on the grounds of extreme cruelty.

If the criterion were our own personal moral principles, we would deny the petition, subscribing as we personally do to the general "revulsion" or "moral conviction or instinctive feeling" against homosexuality. E.g., Report of the Committee on Homosexual Offenses and Prostitution Presented to Parliament by the Secretary of State for the Home Department and the Secretary of State for Scotland by Command of her Majesty (Sept. 1957 Cmmd. 247) (The Wolfenden Report) § B(54); see also Dew v. Halaby, 115 U.S.App.D.C. 171, 317 F.2d 582, 587 n. 10 (1963), cert. granted, 376 U.S. 904, 84 S.Ct. 671, 11 L.Ed.2d 605, cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 550 (1964); H v. H, 59 N.J. Super. 227, 237, 157 A.2d 721, 727 (1959) ("Few behavioral deviations are more offensive to American mores than is homosexuality."); In re Petition for Naturalization of Olga Schmidt, 56 Misc.2d 456, 289 N.Y.S.2d 89, 92 (Sup.Ct. 1968) (petitioner's admitted homosexual activity is not "in the court's opinion, consistent with good moral character as the `ordinary man or woman' sees it."); cf. Note, Private Consensual Homosexual Behavior: The Crime and Its Enforcement, 70 Yale L.J. 623, 627 n. 34 (1951).

In fact, admission by adoption or acquiescence can only be established, where justified, by the totality of circumstances viewed in terms of probable human behavior. See H. v. H., 59 N.J. Super. 227, 157 A.2d 721, 725 (1959). "[And] when it is shown by other proof that the information or advice in a letter was sanctioned by acceptance and was acted upon, to that extent such letter is competent evidence.

Although there are no reported cases on the precise point in Maryland, it may well be that, in a case where the evidence justified it, a pattern of homosexual activity on the part of one spouse could be so demeaning to the self-respect of the other that the latter would be justified in leaving the household. Divorce — Homosexuality as Ground, 78 A.L.R.2d 828 (1961); see also, e.g., H. v. H., 59 N.J. Super. 227, 157 A.2d 721 (1959). The case last cited involved lesbian activities on the part of a wife.

While this is the best approach yet devised, its application is difficult. Less than 10 years ago a New Jersey court wrote: "Few behavioral deviations are more offensive to American mores than is homosexuality" ( H. v. H., 59 N.J. Super. 227). The texts of Kinsey and others, written in the mid 1950's, were cited as authority for this statement.

McVickar v. McVickar, 46 N.J. Eq. 490, 497 ( Ch. 1890). For more recent instances, see Capozzoli v. Capozzoli, 1 N.J. 540 (1949) (unreasonable sexual demands); MacArthur v. MacArthur, 135 N.J. Eq. 215 ( E. A. 1944) (malicious and wanton charges of infidelity); Golden v. Arons, 36 N.J. Super. 371 ( Ch. Div. 1955) (imposition of religious fanaticism); H. v. H., 59 N.J. Super. 227 ( App. Div. 1959) (homoerotism); Stolov v. Stolov, 50 N.J. Super. 178 ( App. Div. 1958) (malevolence and sadism resulting in serious neurotic state); A. v. A., 87 N.J. Super. 440 ( Ch. Div. 1965) (onanism). Conditions which, by modern understanding, abort the human and social objects of marriage are essentially incompatible with the public purposes of marriage.

Ibid., n. 59. In H v. H, 59 N.J. Super. 227 ( App. Div. 1959), plaintiff husband sought a divorce for extreme cruelty based on the defendant's maintenance of an active homosexual relationship with another woman. It is noted that there had been another count charging the same acts to constitute adultery, but this count was withdrawn at the trial. The appellate court reversed the lower court which had denied the relief.

The question is one of first impression in our State. There is an analogy however in H. v. H., 59 N.J. Super. 227 ( App. Div. 1959), where judgment nisi was entered on the ground of extreme cruelty premised on an active homosexual relationship of defendant with another woman. There the court stated: