Superior Court of New Jersey, Chancery Division
99 N.J. Super. 429; 240 A.2d 189; 1968 N.J. Super. LEXIS 664
February 23, 1968, Decided
OPINION: Plaintiff seeks judgment annulling his marriage
to defendant on the ground that she fraudulently procured same
by misrepresenting that he had caused her pregnancy.
The parties (both Caucasian) were married September 11, 1965,
at which time plaintiff was 20 and defendant 18. They had been
acquainted since 1960, when he was 16 and she was 14. Plaintiff
was a resident of Atlantic County and defendant a summer visitor
at her grandparents' home there. Their friendship developed with
the passage of time, so that they visited each other during the
winter months after 1961. By early 1965 they agreed to be married
after defendant concluded her college education.
During the summer months of 1965 defendant secured employment
as a waitress in a restaurant in Atlantic City. During this
time plaintiff had intercourse with her infrequently. Late in August
of that year she told him that she was pregnant. After a medical
test had definitely established her pregnancy they discussed this
fact with their parents. They were married September 11, 1965.
Before the marriage, although plaintiff had been given no reason
to suspect anything to the contrary, he asked defendant if there
was a possibility that her pregnancy was caused by any one else.
She assured him that she had not had sexual intercourse with any
person other than plaintiff.
Following the marriage ceremony the parties lived compatibly,
first in an apartment and later in a house which plaintiff purchased
in his own name with the intention of causing title to be placed
in their joint names after defendant attained her majority.
On April 6, 1966, defendant was delivered of a female child at
a local hospital. As the child grew older it took on a distinct
negroid physiognomy. When plaintiff expressed surprise at the child's
color shortly after her birth, defendant explained to him that
her maternal ancestors were fairly dark-complexioned.
As time passed and the child's features became more distinct,
plaintiff thought that it might have suffered some internal disorder
causing this appearance. Consequently, he consulted the family
doctor. The physician then informed him that the child was a Negro.
On further questioning, defendant told plaintiff that during the
summer of 1965 she had been raped by a Negro when she was returning
from work one evening; that she did not report this to the police
because she thought it would result in publicity, and that she
did not tell plaintiff because she was fearful it might change
his affection for her.
Finally, as the result of an independent investigation plaintiff
learned -- and when she was confronted defendant admitted -- that
she had not told the truth. It became evident that defendant had
voluntarily engaged in sexual intercourse with a negro porter who
had been a fellow employee at the aforementioned restaurant.
Plaintiff separated from defendant and immediately filed this
Is plaintiff entitled to a judgment annulling this marriage?
Where a wife has concealed from her husband at the time of the
marriage the fact that she had become pregnant by another man,
the marriage, although consummated, may be annulled at the suit
of the husband under the general equity jurisdiction of the Chancery
court. Carris v. Carris, 24 N.J. Eq. 516 (E. & A. 1873); DiTullio
v. DiTullio, 102 N.J. Eq. 141 (Ch. 1928), affirmed 104 N.J. Eq.
496 (E. & A. 1929); Sinclair v. Sinclair, 57 N.J. Eq. 222 (Ch.
But such relief has been denied under the same circumstances where
the husband also participated in prenuptial intercourse with his
wife, notwithstanding that it was clear that plaintiff was not
the father of the child. Carris v. Carris, supra; Fairchild v.
Fairchild, 43 N.J. Eq. 473 (Ch. 1887), where such facts were raised
as a defense to an action brought by the wife for separate maintenance;
Seilheimer v. Seilheimer, 40 N.J. Eq. 412 (Ch. 1885), an annulment
case; States v. States, 37 N.J. Eq. 195 (Ch. 1883), where a divorce
was sought on the ground of fraud. The denial of relief is generally
posited on the ground that in such cases the husband has been guilty
of unclean hands. In Fairchild, supra, the vice-chancellor said
(at p. 477): "They are equally filthy and abominable in the
eye of the law." In States, supra, plaintiff's prenuptial
intercourse with defendant was termed by the vice-chancellor as "one
of the grossest acts of immorality" (at p. 156).
The above quoted statements of the courts in Fairchild and States,
supra, were expressions of the thinking of Victorian days.
That was an era when law was established too often without regard
to the realities of human frailty. We should not be bound by strict
and unrelenting views which can only cause heartache and misery
out of all proportion to conduct.
This, of course, does not mean that today it is to be considered
any less a wrong to engage in premarital sexual intercourse. But
the effect of such relations under the circumstances exhibited
in this case does not deserve the consequences of a denial of relief
The modern trend of our law permits a more practical treatment.
Since the denial of relief in the above-cited cases was put upon
the ground of unclean hands, we examine our obligation in the instant
The doctrine of unclean hands is "neither puristic nor mechanical,
but an equitable principle to be applied according to the circumstances
of each case and with a proper respect for the paramount interests
of the community at large." Wells v. Wells, 79 N.J. Super.
388, 397 (App. Div. 1963) (dissenting opinion). Our Supreme Court,
in reversing both the trial court as well as the Appellate Division,
41 N.J. 594 (1964) approved the views expressed in the dissent.
It said that "assuming that a court ordinarily has discretionary
power to raise, sua sponte, a recriminatory bar to plaintiff's
cause of action for divorce, we agree that the judge should not
have exercised that discretion under the factual complex here present."
In the instant case, as I have already noted, defendant has raised
no defense whatever. The case was uncontested. Plaintiff testified
to the premarital relationship in recounting all the facts. Both
parties are young. Their lives are before them. There is no possibility,
under the circumstances, of a reconciliation or plaintiff's adopting
the child. The premarital intercourse did not occur as part of
a deliberate plan by plaintiff to seduce defendant.
"Unclean hands" is not a doctrine to be applied automatically
and mechanically; it allows room for equitable considerations arising
out of time, place and circumstance. Wells, supra, 79 N.J. Super.,
at p. 397.
With these views in mind and considering the flexibility permitted,
I find that plaintiff has not been guilty of such conduct that
he should be denied the relief sought by him.
Having found as a fact that all jurisdictional requisites are
present, a judgment nisi will be entered.