SUPREME COURT OF ALABAMA
89 Ala. 291; 7 So. 100; 1889 Ala. LEXIS 142
November, 1889, Decided
PRIOR HISTORY: APPEAL from the Chancery Court of Butler.
Heard before the Hon. JOHN A. FOSTER.
The bill in this case was filed by the wife, and sought a divorce,
on the ground that the abnormal size of her husband's private parts
prevented the consummation of the act of sexual intercourse between
them. The parties were married on the 8th July, 1888, and the bill
was filed on the 26th September, 1888. The chancellor overruled
a demurrer to the bill for want of equity, and his decree is here
assigned as error.
HEADNOTES: Bill in Equity for Divorce, by Wife.
1. Physical incapacity, as ground of divorce.--Incurable physical
incapacity to enter into the marriage state, as a statutory ground
of divorce (Code, § 2322), means impotency, or physical incapacity
to consummate the act of sexual intercourse, whether proceeding
from physical imperfection or malformation; but, before the wife
can obtain a divorce, on the ground that her husband is thus physically
incapacitated by reason of the abnormal size of his private parts,
she must submit to an examination of her person under the order
of the court, to show that the defect is not on her part; and the
husband must submit to an examination of his person, in order that
the court may be satisfied that the proceeding is not consentive
COUNSEL: RICHARDSON & STEINER, for appellant.
CHARLES WILKINSON, contra.
JUDGES: STONE, C. J.
OPINION BY: STONE
OPINION: STONE, C. J.--The averments of the bill in this
case are too offensive to modesty to allow their publication in
our reports. But, as said by Lord Stowell in Briggs v. Morgan,
3 Phill. 325--1 Eccles. Rep. 408—“Courts of law are
not invested with the powers of selection. They must take the law
as it is imposed on them. Courts of the highest jurisdiction must
often go into cases of the most odious nature, where the proceeding
is only for the punishment of the offender. Here, the claim is
for a remedy, and the court can not refuse to entertain it on any
fastidious notions of its own."
Our statute, Code of 1886, § 2322, declares that either party
to a marriage is entitled to a divorce from the bonds of matrimony, "when
the other was, at the time of the marriage, physically and incurably
incapacitated from entering into the marriage state." The
meaning of the words, "physically incapacitated," as
here used, is substantially the same as that of the word impotent,
frequently met with in divorce proceedings. It means powerless,
or wanting in physical power, to consummate the marriage. Animal
desire between the sexes is one of the incitements to matrimony,
the lawful gratification of which is encouraged and protected alike
by moral sentiment and municipal regulation. Copulation, or coition--the
act of gratifying sexual desire--is the consummation of marriage,
inability to accomplish which, when it proceeds from incurable
physical imperfection, or malformation, is precisely what our statute
means and expresses, by the words "physically and incurably
incapacitated." Barrenness, however, is in no sense the synonym
of impotency. We consider it unnecessary, at this stage of this
case, to go into further details. 1 Bishop Mar. & Div. (6th
Ed.), §§ 322 to 338a, inclusive, treats the subject at
length, and collates and reviews the adjudged cases. We approve
his statement of the American doctrine, as set forth in said sections.--
Devanbagh v. Devanbagh, 28 Am. Dec. 443, note.
Is the malformation, or physical incapacity charged in the bill,
if true, sufficient ground for divorce? Can we, as matter of law,
or of indisputable fact, affirm that the charge is preposterous,
and therefore untrue? Are the abnormal proportions, which are charged,
impossible in the nature of things? We know of no rule of law or
logic, by which we can reach such conclusion. We hold that the
chancellor, in his decretal order, overruling the demurrer and
refusing to dismiss the bill, did not err.
The briefs of counsel give evidence of diligent research, and
they furnish no adjudged case, in which the malformation here complained
of was the ground of complaint. We suppose such cases, if they
exist at all, are very rare. To authorize the relief prayed, the
proof should be very satisfactory, and the most direct which the
nature of the question is susceptible of. The complainant must
be required to submit her person to examination by physicians,
or matrons skilled in such matters, to be appointed by the chancellor;
and proof of such examination, by the persons so appointed, showing
that the fault is not with her, must be made an indispensable condition
of relief. If she refuse to submit to such examination, then let
her bill be dismissed.
The defendant also should submit to a skillful examination, as
a condition of his defense, if he contents the complainant's right
to relief. But, if defense is not made as herein indicated, the
chancellor should scrutinize the testimony narrowly, and have recourse
to any other legal means, with a view of ascertaining if the proceedings
have not become consentive and collusive. Finding such to be the
case, relief should be denied, except on clear proof of the charge
preferred in the bill; namely, that for the reason stated, the
defendant "was, at the time of the marriage, physically and
incurably incapacitated from entering into the marriage state."