BIDDLE, Advisory Master

(Syllabus by the Court.)

Action by Anne Yawger against Alvah Yawger for divorce. Decree nisi for dissolution of the marriage advised.

Simeon H. Rollinson, of Orange, for petitioner.

BIDDLE, Advisory Master. The parties were married November 29, 1899, and lived together until the petitioner left the defendant July 27, 1909. At the time of the marriage they were each 24 years of age. Immediately after the marriage the wife discovered that the husband was incapable of sexual intercourse. He admitted the condition to exist, but said that it was only necessary for him to undergo an operation, and the defect would be removed. His belief was fully warranted by the facts of the case. Though the doctor states that the defect was "a rare one," it was manifestly removable without danger. The wife then, and many times afterwards, requested and urged her husband to seek surgical aid. There is no reason to dispute the truth of her testimony that she desired children, and that her desire was often and urgently expressed to the husband. Originally the husband's inaction may have arisen from timidity or disinclination to seek professional advice, but it soon drifted into indifference, and latterly into positive resolution to avoid the consequences of coition with the petitioner. About eight months before the parties separated, when the emotions of the wife had been strongly aroused by the birth of a child to defendant's sister-in-law, the wife made a further demand that the husbandgo to a doctor, whereupon he replied, "No, I have enough to do without taking care of kids."

The case has been framed on the theory of a constructive desertion. Aside from a denial of marital rights, the wife deposes to some acts of personal violence. There is no adequate corroboration on these points. In this respect the husband's offenses are not proved, as is required, by clear and satisfactory evidence. Suydam v. Suydam, 79 N. J. Eq. 144, 146, 80 Atl. 1057. There is really little or no proof in the wife's deposition that the acts of violence produced any hurtful effects; they do not account for the state of the wife's health at the end of the cohabitation, nor would a reasonable apprehension of future discomfort exist, if regard were paid to them alone. The wife would likely have suffered the real cause of complaint to have continued a while longer, if the husband had been always mild-tempered, instead of rude and hasty now and again.

But the evidence is altogether convincing that the marriage was never consummated, and that the wife's attitude was one of continuing dissent to that abnormal condition. A single incident will show the relation of the impotence to the offense of matrimonial desertion. The family physician had been produced before the master in this cause, and had testified to his examination of the petitioner on March 3, 1911, and of her virginity at this time and her capacity for intercourse. Without prompting, he proceeded to further testify that on April 11, 1911, about a year before the commencement of this suit, and scarcely a month after the wife's examination, the husband appeared at his office, underwent an examination, and submitted to an operation that cured him of his defect. Until the wife had been informed of what the witness had testified, she was ignorant that the husband's impotence had been removed. The wife then submitted to a second examination, and her virginity at this late time was proved. It is entirely established that the husband never in any wise communicated with the wife since the year 1909. The physicians and others testify to the wife's condition at the time of the separation in 1909, and the former states that it is generally considered and conceded by medical authorities that ungratified sexual desire will lead to such mental and nervous symptoms as then existed in her case.

A constructive desertion in the ordinary form, the compelled cessation of cohabitation (that is, a living together), is made out. But no importance is attributed to that particular form. Raymond v. Raymond, 79 Atl. 430. The defect continued for 11 years after the marriage, and there has been a separation for that cause, and the husband for a year after the cure had been effected concealed the fact of the same from the injured wife. The deserting mind of the husband has ever continued unabating, the desertion was ever direct and actual, and the mere local habitation of the wife previous to the cure appears to be of no legal concern whatever. There is nothing necessarily constructive about the desertion.

The present case does not involve a consideration of the method of proving the fact of incurable impotence, as that term is used in section 1, par. 3, of the Divorce Act (2 Comp. St. 1910, p. 2022), allowing a marriage to be annulled for such physical and incurable defect. The impediment was easily removed by art and skill. The proviso to this same section that restricts the right of suit to an applicant who was ignorant of such impotency or incapability at the time of the marriage, or has not subsequently ratified the marriage, is likewise inapplicable. Mr. Nelson states, what no doubt is the consensus of opinion among practitioners in this country, where desertion, or cruelty, is allowed by law as a ground for divorce a vinculo, that it is advisable to avoid the suit for annulment for impotence, and bring the dissolution suit for the reasons he gives. 2 Nelson, Divorce & Separation, § 675. If the true ground is indeed incurable impotence, I doubt how far a court will let the proviso suffer defeat; but it were better that the original form of the statute had been preserved, and that the conscience of the chancellor should have been left free to deal with any particular equities. See Gulick v. Gulick, 41 N. J. Law, 13. The proviso gives a false impression, as if the parties to a marriage that cannot be consummated are somehow sharply to be looked at, and the bond rigorously maintained (despite that the object of marriage is defeated), if the petitioner ought to have been more circumspect, or is little better than the defendant. The English courts deal with this subject in a very direct and sensible way. In G. v. G. (1912) P. 173, Mr. Justice Bargrave Deane had a case before him where both parties petitioned for an annulment of marriage. There had been no consummation. He did not attempt to make a judicial finding which of the two parties was physically incapacitate. It did not occur to him to be necessary to brand one of the spouses a perjurer and a defective. He probably could not tell which one to believe. But there was the truth, a consummation for no apparent or manifest reason, and a marriage in name only. "These stories," he said, "are absolutely inconsistent; but that is immaterial, if I am satisfied that quoad hanc et quoad hunc these people cannot consummate the marriage. If for some reason that is not clear, but in fact the court is satisfied that the marriage cannotbe consummated, then the court is entitled to annul the marriage and not tie the people together for the rest of their lives in a state of misery. Therefore I am prepared to pronounce a decree, not on the petition of either of them, but on the petition of both of them, leaving either of them to make the decree absolute, both, if possible." Now that accords with good judgment and the ecclesiastical origins. After there has been a fair period of cohabitation of young people, and no consummation, it is much to be regretted that, whether from the rigidity of our statutes, the consequent difficulty of proof, or the disinclination of modern folk, we feel so often obliged to throw these proceedings into a divorce suit that we consider strictly adverse. Rather the parties ought to be separated. In consequence, I think it unnecessary to say that the wife never profited in a worldly sense from the status, nor sought such profit. If the husband were here defending because of some matter of estoppel, or ratification, or what the conduct may be called, that is one thing; but his silence to her suit is an evident consent.

The long cohabitation during the impotence is no bar, whether he could not, or simply would not, consummate the relation.

The report of William H. Francis, Esq., the special master, is confirmed, and a decree nisi for the dissolution of the marriage because of the husband's willful, continued, and obstinate desertion of the petitioner for the term of two years next preceding the commencement of the suit is advised.