Summary
In Raymond v. Raymond, N.J.Ch, 79 A. 430, at page 431 the Court said: "The controlling purpose of marriage is to enable the sexes to gratify lawfully the natural desire for procreation which has been implanted in them, that the race may be preserved upon the earth."
Summary of this case from Kreyling v. KreylingOpinion
11-15-1909
RAYMOND v. RAYMOND.
Collins & Corbin, for petitioner.
Petition for divorce by Elizabeth G. Raymond against Thomas L. Raymond. Finding by a master that petitioner established ground for divorce.
Collins & Corbin, for petitioner.
VAN SYCKEL, Special Master. The petitioner was married to Thomas L. Raymond, the defendant, at the residence of her father in Newark, N. J., on the 23d of April. 1903. In a few days thereafter they took a house in Orange, N. J., where they lived nearly two years. For a short time they occupied the same bed, and then, at the request of the defendant, they continued to occupy single beds in the same room as long as they lived together. There was no sexual intercourse while they occupied the same bed. Soon after they slept in separate beds, the wife requested the defendant to have sexual intercourse with her, and he refused. They moved from Orange to a house in Roseville, N. J., where they lived together nearly two years, and from there they moved to Newark, N. J., where they kept house, and continued to live until May, 1909. During all this time they occupied single beds in the same room. While they lived in Roseville, she again asked him to have sexual intercourse with her, but he refused to do so, saying to her: "If you can't live with me as you are, you can get to hell out." At other times he swore at her and treated her withviolence without cause. He has never had sexual intercourse with her. In May, 1909, she left her home in Newark, and went to the house of her parents, who live there, and where she has since remained. She informed her father of the facts above set forth, and he advised her to go and see her husband, and have a talk with him. She complied with that request and went back to her husband's house, and told him she intended to leave him. He replied she had better wait, and she said to him, "If I do remain, will you be a husband to me," but he again said he would not. Thereupon she left him, and has since lived with her father in Newark. Dr. Edward J. Ill of Newark, a physician and surgeon of great experience and high repute, whose specialty has been and is abdominal surgery and female complaints, testified that in June, 1909, at the request of the petitioner's father and with her consent, he made a physical examination of her person and her private parts for the purpose of ascertaining whether her marriage had been consummated. He found that she was still a virgin; that she was normal in every way physically, well formed in all respects, and attractive in person. This sufficiently corroborates the petitioner. On the first of July. 1909, she filed her petition for divorce on the ground of desertion.
There is difficulty in defining with accuracy what constitutes desertion. It is not an abnegation of all marital rights. Hardy on Divorce, p. 17; Nelson on Divorce, 5 54; Thompson v. Thompson, 1 S. & T. 233. What is desertion must depend materially upon the language of the statute which makes it cause for divorce. Our statute provides that for desertion the Court of Chancery may decree a divorce from bed and board forever thereafter. The Massachusetts statute provides that divorce may be granted where one of the parties utterly deserts the other. Under that statute, the Massachusetts court in Southwick v. Southwick, 97 Mass. 327, 93 Am. Dec. 95, refused a divorce for denial of sexual intercourse. In the subsequent case—Magrath v. Magrath, 103 Mass. 577, 4 Am. Rep. 579?divorce was decreed, although the husband supported the wife, but did not live with her. This was a modification if not an abandonment of the rule adopted in 97 Mass., 93 Am. Dec. The Massachusetts cases cannot be regarded as authority here. The relation of marriage cannot exist between man and man, or between woman and woman. The human race was created male and female with the manifest purpose of perpetuating the race. Marriage without sexual intercourse utterly defeats its purpose, as sexual intercourse except in the marital relation is contrary to the divine law, and criminal under our laws. All other duties which inhere in the marriage relation can be contracted for, and performed without violating any law, before marriage. The controlling purpose of marriage is to enable the sexes to gratify lawfully the natural desire for procreation which has been implanted in them, that the race may be preserved upon the earth. If either party may refuse to consummate the marriage, and still hold the other in the bond of matrimony, it is apparent that licentiousness would be encouraged and promoted, and we would become a race of bastards. There is nothing degrading in this view of the marriage state. It is in fulfillment of the design of Providence. All other marital duties are incidental to the dominant object, and human experience has shown that they will not be performed through affection, but only through coercion where the supreme power is disregarded. If husband or wife may and does refuse to consummate the marriage, the home upon which society depends for virtuous living and which is the nursery for the rearing of children in all that is ennobling in life will cease to exist. Marriage is encouraged for reasons of public policy and morality, and the parties should not be held in an unnatural relation, repugnant to sex, and promotive of adultery. It cannot be doubted that marriage would never be contracted if it was not to be consummated by sexual intercourse.
That the willful denial of this controlling right in the marital relation constitutes desertion within the contemplation and meaning of our statute is not without authority to support it. "Where the husband puts an end to what is lawful in marriage and unlawful in every other relation—to what distinguishes marriage from every other relation—this by the better opinion constitutes matrimonial desertion, though the deserting party consents still to live in the same house with the other." 1 Bishop on Marriage and Divorce, § 1676. "Sexual intercourse is of the essence of marriage, without which it cannot exist in its proper form. * * * Indeed, there is but one thing which is special to marriage, and is lawful in no other relation. All else pertaining thereto a man and woman may mutually contract for and do without taking the first step towards marriage. The unavoidable conclusion from which reasoning is that the married party who permanently and irrevocably withdraws from all that is peculiar to marriage, whatever incidentals he may adhere to, commits matrimonial desertion." 1 Bishop, Marriage & Divorce, § 1678. Hardy on Divorce, p. 19, after referring to cases to show that it is difficult to give an exact definition of desertion, says: "Cohabitation may be put an end to by other acts besides that of actually quitting the common home. This done willfully against the wish of the other party, and in execution of a design to cease cohabitation, would constitute desertion." Nelson on Divorce, § 54, says: "Desertion as a cause for divorce is a willful cessation of the marital relation without justifiable cause, or an unjustifiable refusal to renew the relation. A desertion occurs where one party leaves thehome with the intention not to return, or it may occur where one party refuses to perform the duties of a husband or wife and thus causes a separation." And in section 71 Nelson further says: "Where there is no peculiar form of statute indicating a contrary definition, the true doctrine is believed to be that the statutory term 'desertion,' as applied to husband and wife, means a cessation of the marital relation, and this doctrine is in accord with the general principles of the divine law. We have seen that there may be a desertion, although the parties live under the same roof. Marriage is the union of opposite sexes, and sexual intercourse is the distinguishing feature of that union. This is not a low or degrading view of the marriage relation, for it is an undisputed fact of nature, recognized in many ways in our law. Such intercourse is lawful only in marriage. The desertion terminates when the parties commence to live together as husband and wife in the sexual relation, or one party offers to do so. Where it is admitted that sexual intercourse is the distinctive feature of marriage, and that desertion does not imply an absconding, and an abnegation of all duties, it must follow that the refusal of the wife to perform her duty in this respect constitutes a desertion within the meaning of the statute, and within the reason and policy of the law."
The case of Stewart v. Stewart, 78 Me. 548, 7 Atl. 473, 57 Am. Rep. 822, was under a statute like that in Massachusetts, and the Maine court gave its statute the construction like language had received in Massachusetts. In Heermance v. James, 47 Barb. (N. Y.) 126, the New York Supreme Court cites the view of Mr. Bishop with approbation. In Fishli v. Fishli, 2 Litt. (Ky.) 337, where the husband had deserted the wife, but before the expiration of two years had written a letter to her offering to genteelly and comfortably support her in his own house, or in lodgings as she preferred, the Supreme Court of Kentucky held that it was not an offer to live with her in the relation of husband and wife, and as she by the nature and terms of the marriage contract was entitled to live. In Stein v. Stein, 5 Colo. 56, the court said: "Matrimonial cohabitation must certainly comprehend a living together as husband and wife, embracing relative duties as such, otherwise all the married couples residing in a hotel, boarding, or lodging house might be said to be cohabiting promiscuously." And in that case the court held that desertion commenced when the husband refused to have intercourse with his wife, although he lived in the same house with her at the time. After reciting from 1 Bishop (5th Ed.) § 777, as follows: "But it is wholly immaterial whether the distance to which the parties remove apart is great or small, except perhaps as illustrating under some circumstances, in matter of evidence, their intent; for the criterion in all cases is the intent to abandon"—the court in Stein v. Stein further said: "The intent of the defendant to desert his wife in this case is fully shown by his conduct both before and after ceasing to sleep upon the premises of the domicile, and we can conceive that it would not have altered the case had he for those few weeks slept in the barn, or at his office, where he did sleep after leaving the kitchen lounge." In Magrath v. Magrath, 103 Mass. 577, 4 Am. Rep. 579, before cited, the Massachusetts court departed from the strict rule applied to the prior case in that state, saying: "There is no more important right of the wife than that which secures to her in the marriage relation the companionship of her husband and the protection of his home. His willful denial of this right, with the intentional and permanent abandonment of all matrimonial intercourse against her consent, is desertion within the meaning of our statute, and such conduct is not relieved by the fact that he has from time to time contributed to her support and the support of her children." And the court in Magrath v. Magrath cites with approval the English case of Yeatman v. Yeatman, Law Rep. 1 P. & D. 491, where it was contended that the fact that he had continued to support his wife prevented his conduct from amounting to desertion within the meaning of the divorce act, and it was said by the Judge Ordinary that although the permanent denial of the right of the wife may be aggravated by leaving her destitute, or mitigated by a liberal provision for her support, yet if the cohabitation is put an end to. against the consent of the wife, with no intention of renewing it, the matrimonial offense of desertion is complete.
The cases generally admit that unjustifiable withdrawal from marital cohabitation constitutes desertion. That marital cohabitation implies necessarily something more than merely living under the same roof is strikingly stated in the quotation before made from Stein v. Stein. Where will the line be logically drawn, unless it is held that to constitute matrimonial cohabitation it must include those duties which distinguish the marital from every other contractual relation. When cohabitation in its true sense in the marriage relation ceases, desertion commences.
I have not overlooked two cases in our own court. In Reid v. Reid, 21 N. J. Eq. 331, the wife sued for divorce on the ground of desertion, which she established to the satisfaction of the Chancellor. The husband set up in defense that for a year before his desertion she refused marital intercourse with him. The Chancellor said that the refusal of marital intercourse was not sufficient to justify either adultery or desertion by the husband, that no authority was produced, and he knew of none to sustain such a position. His attention was manifestly not called to the authorities I have cited, andthe reasons upon which they are based were not considered by him. It appears in the testimony in that case that the parties were married in 1841, and lived together until 1862, during which time two children were born of the marriage. So far as appears, the husband after he left the wife did not offer to return, or make any request for the renewal of his marital rights. In the case of Watson v. Watson, 28 Atl. 467, reported in 52 N. J. Eq. 349. as "Anonymous," Chancellor McGill held that the fact that the wife withdrew from sexual intercourse with the husband did not constitute desertion within the meaning of our statute. That was an ex parte case, in which the Chancellor found as a fact that the husband, who was complainant, never sought restoration of his marital rights, and the parties had lived together for many years, during which time three children were born of the union.
These cases are plainly distinguished from that in hand, and under all the authorities were well decided, as there must be a request by the party complainant for the continuance of marital intercourse. The case submitted differs radically from every other which I have found in the books. The marriage was never consummated. The request of the husband that the wife should occupy a separate bed was equivalent to coercion, as is shown by his violent language when her request for intercourse was renewed, and by the abuse with which he treated her at other times. It was substantially an exclusion from the home to which he had invited her. a denial of the close and intimate relation and the deep affection which is cemented by the marriage tie, and which can exist only in that relation. All that was left to her was food and shelter, which for the grief, mortification, and disappointment which overwhelmed her were stripped and denuded of all their value, and cannot be regarded as a performance of the husband's duty even in those incidental respects. It is true that she might have withdrawn from his home and his presence, whereby her sorrow might have been mitigated, but in all the cases in which there has been a refusal to adopt the views of Mr. Bishop it is held that denial of sexual intercourse does not justify the wife's desertion from the common home, and she will continue to be held in this unnatural bond, which has embittered and ruined her young life, unless relief is granted her in this court on the ground of desertion.
That in this case the husband performed one single duty of the marital contract according to its true intent and meaning I cannot agree. The wife was denied and excluded from everything of value she had a right to expect from the engagement into which she had entered, as fully as though the defendant had permanently left her alone in the home. I am so strongly impressed with the force and soundness of Mr. Bishop's view, and with the necessity of adopting it, if the home as it now exists is to be perpetuated, and its purity reserved, that I feel constrained to find that the petitioner has established the ground upon which she rests her claim for a divorce from the bond of matrimony.