COURT OF CHANCERY OF NEW JERSEY
92 N.J. Eq. 113; 111 A. 599; 1920 N.J. Super. LEXIS
235; 7 B Stockton 113
August 15, 1920, Decided
COUNSEL: Messrs. Riker & Riker (Mr. Theodore McC. Marsh),
for the petitioner.
Mr. William L. Brunyate, for the defendant.
JUDGES: BACKES, V. C.
OPINION: BACKES, V. C.
This petition is for annulment of marriage on the ground of incurable
impotency. The couple, young persons, have cohabited for five years
and the wife is still a virgin. She is physically and mentally
normal and capable of copulating. Her virginity and aptness are
established beyond question by three physicians who examined her
recently. She testified that her husband never tried to function;
that he made no effort at penetration, and that the extent of his
performance was to lie upon her, with parts limp between her thighs,
and agitate. He vigorously protested his virility, but admitted
the non-consummation of the marriage, and also that he sought gratification
in external attrition, as his wife described, because, as he says,
his efforts at sexual intercourse were painful and distressing
to her. He submitted to an examination by one of his wife's physicians,
who testified that he was structurally a male, normal in the parts
and to all appearances capable of coition. In build, carriage,
voice and deportment, as I observed him in court, he appeared to
be up to the standard.
If there is genital impairment it is latent and scientifically
undiscoverable; or the lapse may be due to a psychosis, well recognized
by the medical science, and discussed in some of the divorce cases
in England--a mental condition rendering him physically impotent
as to his wife, though potent as to all other women. Were it necessary
for the judgment to pronounce the cause of impotency, I would not
be unwilling to ascribe the impasse between this couple to this
peculiar phenomenon. In N---r v. M---e, 2 Rob. Ecc. 625, Dr. Lushington
annulled a marriage on the report of inspectors that the husband
was impotent as regards his wife, and held, in effect, that the
law was not concerned further than this, observing that impotency
quoad hanc was as prejudicial to the wife as universal impotency.
In approaching a decision of the issue raised by the pleadings--the
impotency of the husband, which is bitterly controverted by sharply
conflicting and recriminating testimony--I shall apply the rule
of the English courts taken from the civil law as modified by Justinian,
called the Doctrine of Triennial Cohabitation. The essence of that
doctrine is, that if the wife be a virgin and apt after three years'
cohabitation, the husband will be presumed to be impotent, and
the burden will be upon him to overcome the presumption by proof
that he is not at fault. It is applied as a hard and fast rule
in England. Lewis v. Hayward, 35 L. J. (N. S.) Prob., M. & D.
105; G-- v. M--, 10 App. D.C. 171; C-- v. C--, 29 L. J. (N. S.)
81; S-- v. A--, 3 Prob. & Div. 72; F-- v. P--, 75 L. T. 192;
Marshall v. Hamilton, 3 Sw. & Tr. 517; G-- v. G--, L. R. 2
Prob. Div. 287; F-- v. F--, 34 L. J. (N. S.) Prob. & M. 66;
Welde v. Welde, 2 Lee Ecc. 580; Countess of Essex Cases, 2 How.
St. Tr. 786; Sparrow [*115] v. Harrison, 3 Curt. Ecc.
16; Anonymous, 2 Rob. Ecc. 625; S-- v. E--, 3 Sw. & Tr. 240;
G-- v. S--, 1 Spinks' Ecc. 389; A-- v. B--, 1 Spinks' Ecc. 12.
Mr. Bishop devotes a subchapter to the rule. 2 Bish. M., D. & S.
I do not find countenance given to the doctrine in any of the
reported cases in this country, but I can conceive no good reason
why it should not be introduced into our jurisprudence as a rule
of law in the decision of these vexed questions of fact, to which,
usually, the parties alone bear witness, each blaming the other.
The doctrine is logical and sound in principle and helpful and
convenient in the proper administration of justice. It appeals
to one's sense of justice, for it would seem but fair that after
three years' probation a husband ought to be made to account for
his dereliction, to his disappointed and complaining spouse. The
period is none too short. Whatever may have been the cause in the
past for not giving expression to the rule (perhaps, it was due
to an early impression of the bench and bar) that the court of
chancery was without inherent jurisdiction to annul a marriage
for impotency, notwithstanding the obviousness of the fraud, because
its English prototype had not exercised it--a view voiced in Anonymous,
24 N.J. Eq. 19. In later cases there have been annulments for various
kinds of fraud, some less serious in their consequences than impotency.
Carris v. Carris, 24 N.J. Eq. 516; Crane v. Crane, 62 N.J. Eq.
21, 49 A. 734; [***5] Davis v. Davis, 90 N.J. Eq. 158,
106 A. 644; Bolmer v. Edsall, 90 N.J. Eq. 299, 106 A. 646; Ysern
v. Horter, 91 N.J. Eq. 189, 110 A. 31. There is no valid reason
for not adopting it as a part of our common law, since the legislature
has added to the domestic relation jurisdiction of the court of
chancery incurable impotency as a cause for annulment. While novel,
and an innovation in our practice, there is no reason why the rule
should not have a place in our judicial system, there to subserve
the administration of the law as it has for ages under a system
which we inherited.
The burden, then, being shifted to the husband to excuse or justify
the plight of his wife, the question comes to one of belief in
his story of forbearance for five years, under most trying circumstances,
simply because sexual intercourse was painful and distressing to
her I have misgivings. Such solicitude of a groom is noble, of
a husband, heroic. Few have the fortitude to resist the temptations
of the honeymoon. But human endurance has its limitations. When
nature demands its due youth is prodigal in the payment. Men are
still cavemen in the pleasures of the bed. The sex may be more
temperate, but none the less passionate, and heedless of the penalty.
They do not shirk the initiation nor shrink from the consequences.
The husband's plea does not inspire confidence. Common experience
discredits it. And if, in fact, he had the physical power, and
refrained from sexual intercourse during the five years he occupied
the same bed with his wife, purely out of sympathy for her feelings,
he deserves to be doubted for not having asserted his rights, even
though she balked.
The presumption of impotency has not been overcome and a decree
of nullity will be advised.