Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
The plaintiff, Ruth S. Rhoades, appeals from an order of the Chancery Division denying maintenance pendente lite and the defendant, E. Ralph Rhoades, appeals from the judgment dismissing his counterclaim for annulment of the marriage.
The parties were married on July 25, 1947, and cohabited thereafter until August, 1948, on which latter date the defendant refused to longer maintain the marital relationship with his wife, although they continued to occupy the same apartment. The plaintiff's complaint seeks separate maintenance on the ground of abandonment and non-support. The defendant's answer alleges that his refusal to further live with and support his wife is justified, asserting that their marriage was void because of certain false representations made to him by his wife. The defendant asserts in his counterclaim praying for an annulment of the marriage, that to induce him to marry her, plaintiff at and prior to the performance of the marriage ceremony, falsely represented to him that she had borne a male child by him; that defendant agreed to and did enter into said marriage "solely and only because of her representing that she had said child by him;" that he was ignorant of the falsity of this representation until plaintiff's confession thereof in August, 1948; that thereupon he immediately separated from her and refused thereafter to continue the marital relationship. On November 18, 1949, the court denied plaintiff's application for alimony pendente lite , from which order no appeal was taken. A similar application was also denied on April 21, 1950. Following the submission of affidavits by the parties and oral argument, plaintiff's application for a dismissal of defendant's counterclaim and the entry of summary judgment thereon on the ground that it did not set forth a cause of action, was granted.
The affidavits submitted to the court reveal that in 1945, prior to their marriage, the parties indulged in sexual intercourse; that in June, 1943, the defendant married another woman, from whom he obtained a divorce on March 26, 1947; that the plaintiff represented to defendant that as the result of their illicit relationship, a child was born and relying upon the truthfulness thereof, he married her on July 25, 1947; that the reason she did not tell her husband of the child's birth previously, was because she did not want to disturb the peace and harmony of his other marriage and she purposely delayed so informing him until after he had obtained the divorce heretofore mentioned; that the defendant repeatedly made inquiry of his wife as to the whereabouts of the child and was given several contradictory stories, which upon inquiry, turned out to be false; and that actually no such child was ever born. Defendant concedes that the plaintiff was not promiscuous. The parties raise no procedural questions as to the manner in which the application for summary judgment of dismissal of the counterclaim was presented and decided.
The question to be determined is whether the allegations of the counterclaim set forth such fraud as will justify the voiding of their marriage. As to what false representations will constitute fraud sufficient to justify the annulment of a marriage have been considered in a number of cases decided by the courts of New Jersey. At the outset, it must be conceded that the cases in the various jurisdictions are not in accord, but we are inclined to think that the disagreement arises over whether the rule applying to ordinary contracts shall prevail or the rule that the marriage contract is one in which the public is concerned and, therefore, to justify annulment, there must be proof of fraud of an extreme character affecting its very essence. The controlling New Jersey rule is stated in the leading case of Carris v. Carris , 24 N.J. Eq. 516 (E. & A. 1873), in the following language:
"The general principle of the law is, that fraud in a material part, vitiates a contract, and the only reason why it does not apply with full force to the marriage contract is, that marriage is sui generis in
many respects, and should not be vitiated even if fraudulent, when against 'good policy, sound morality, and the peculiar nature of the relation.' To be free from that restriction, the fraud must be of an extreme kind, and in an essential of the contract."
The Carris case has been cited with approval in numerous decisions, the most recent of which is Akrep v. Akrep , 1 N.J. 268 (Sup. Ct. 1949). In New Jersey, proof of fraud sufficient to vitiate ordinary contracts does not apply to the marriage contract. Carris v. Carris, supra; Akrep v. Akrep, supra. Nor is annulment justified where there has been premarital incontinence. Carris v. Carris, supra; States v. States , 37 N.J. Eq. 195, 196 (Ch. 1883); Seilheimer v. Seilheimer , 40 N.J. Eq. 412, 413 (Ch. 1885); Trimpe v. Trimpe , 65 A. 744 (Ch. 1907, not officially reported); Lindquist v. Lindquist , 130 N.J. Eq. 11 (E. & A. 1941). A consummated marriage will not be annulled where the injured party has had ample time to make thorough inquiry as to the truth or falsity of the representations that induced him to enter into the marriage contract and fails to do so. See States v. States, supra; Woodward v. Heichelbech , 97 N.J. Eq. 253 (Ch. 1925). Mr. Justice Heher, speaking for the Court of Errors and Appeals in the Lindquist case, supra , stated: "In regard to continence, as well as to other personal traits and attributes of character, it is the duty of a party to make due inquiry beforehand, and not to ask the law to relieve him from a position into which his own indiscretion or want of diligence has led him." Fraudulent representation sufficient to justify its annulment is the subject of ascertainment in every case. Akrep v. Akrep, supra; Ysern v. Horter , 91 N.J. Eq. 189 (Ch. 1920); Bolmer v. Edsall , 90 N.J. Eq. 299, 300 (Ch. 1919); Nocenti v. Ruberti , 17 N.J. Misc. 21 (Ch. 1933).
The only case cited by defendant in support of his contention is the case of Di Lorenzo v. Di Lorenzo , 174 N.Y. 467, 63 L.R.A. 92, 95 Am. St. Rep. 609, 67 N.E. 63. The Di Lorenzo case rests upon a different construction of the rule of law applicable to the marriage contract than that prevailing in our State. The New York courts hold, as it did in the Di Lorenzo case , that proof of fraud sufficient to set aside
an ordinary contract is all that is required to terminate a marriage contract. In the Di Lorenzo case , the Court of Appeals in reversing the Appellate Division of the Supreme Court, ...