Conford, J.A.D. (temporarily assigned).
[38 NJSuper Page 503] Plaintiff brought this action to secure an annulment of a ceremonial marriage of the parties contracted February 3, 1954, on the ground of the physical and incurable impotence of the defendant. The complaint recites a fraudulent concealment of the fact from the plaintiff by the defendant. The parties cohabited until the latter part of May 1954 and the complaint in this action was filed July 19, 1954. Plaintiff's story is that there was not a single act of sexual intercourse between the parties; defendant's that there were frequent and regular matrimonial relations commencing the marriage night. I am satisfied from the proofs, to which I shall make reference, that both principals to this litigation have testified falsely. There were apparently attempts at sexual connection which were painful and difficult to the defendant and ultimately ceased. I have had to divine the facts from the testimony of a physician who examined and treated the defendant and
by reading between the lines of the untruthful testimony of the parties. The real problems presented are (1) as to whether the disability from which I conclude defendant was suffering is satisfactorily proven to have been one which constituted her "incurably impotent," and (2) whether plaintiff has not "ratified the marriage." N.J.S. 2 A:34-1.
At the time of the marriage plaintiff was about 56 years of age and the defendant some 20 years younger. There had been a courtship of over a year. Both had had previous marriages. Defendant has children by her first husband, the youngest about 13 years of age.
Plaintiff's testimony was substantially to this effect. The night of the marriage the parties went to bed together between 2 A.M. and 3 A.M. after the wedding celebration in Asbury Park. They did not consummate their legal union by sexual relations because "it waw too late." They were tired and wanted to make an early start in the morning for their honeymoon at the Hotel Taft in New York City. Their arrival later that day in New York was fortuitously concomitant with that of her menstrual period. That lasted seven or eight days and the honeymoon was not what plaintiff had hoped for. When they arrived home in Asbury Park she put off his solicitations of his marital due with the plea that she felt unwell, had pains "in her abdomen" and that he should "leave her alone." Subsequently she went to Dr. Maron "to see what's wrong with me" and told the plaintiff the doctor said she had internal cysts, that he "couldn't go near her" and that relief of her condition would require a serious operation some time. She left him March 31, 1954, leaving a note (conceded by defendant to be in her handwriting) to the effect that she was leaving because "we have no real marriage." On cross-examination plaintiff said that defendant returned to his home a week later, but only because she could not find an apartment. She stayed six or seven weeks, occupying a separate bedroom, and then left him permanently. There were never any marital relations. After she left he made strenuous efforts to induce her return, but to no avail. He was willing to continue the marriage in the
hope she might some day be able to perform her marital function. The doctor had told him she was sexually incapable but that an operation might possibly cure the condition.
Dr. Maron testified for the plaintiff. He has been a medical doctor eight years and is in general practice. He knew both of the parties prior to the marriage and had treated defendant for other ailments. She came to his office with the plaintiff for advice and treatment on three occasions within a little over a week, the first time on February 26, 1954. She told him that she had not had sexual relations with the plaintiff because of pain in her abdomen so severe as to require her to lie down. She was nervous and upset. At the first visit he prescribed only sedation. Several days later he performed a gynecological examination. He found the inner and outer vaginal muscles rigid and the vaginal opening "very contracted." There was obvious pain on palpation in the uterus and vagina. The condition was one which would not permit entry of "anything softer than a finger." He also found two small cysts on the cervix but he said they did not bear on the question of capability. His conclusion was that she was not then capable of sexual intercourse. He prescribed douches and advised abstention from intercourse. A week later he found the same condition and prescribed heavier sedation. She never returned thereafter.
Dr. Maron testified that there was no structural malformation but a condition arising from a combination of muscular and psychological factors. The muscular rigidity itself might be due to psychological influences. If the latter were removed the entire condition might be cured but it was his opinion it was unlikely that this would occur. He said there was also a possibility of relief by surgery or stretching. He gave it as his opinion that her incapacity was permanent "if the other factors remained the same." He did not make a psychological or psychiatric examination of the patient.
Defendant's testimony was to the effect that there was never any problem between the parties over sexual relations;
that there was consummation of the marriage the first night and, except for menstrual periods, regular marital intercourse thereafter, free of pain or difficulty, three or four times a week, until she left the plaintiff in May 1954. She says she went to Dr. Maron for treatment of a temperature and was told she had a "virus flu"; that there was a vaginal examination on the third visit but only because she had had a discharge; and that the doctor told her husband to refrain from intercourse with her "for a few days." She testified she left the plaintiff because they could not get along generally, had disputes over money, and he gave her no real companionship. She had no supporting witnesses.
Plaintiff contends that defendant's obviously perjurious testimony constitutes such unclean hands as should preclude any consideration of her defense to the action. Conceding the justification for the characterization of her testimony, the argument misconceives the function of the court in this kind of litigation. The public is a party to every matrimonial litigation and the vulnerability, nay, indeed, the absence, of a defense will not relieve the court of its own obligation to see to the strict satisfaction of every requisite before granting a judgment of divorce or annulment of marriage. Armour v. Armour , 138 N.J. Eq. 145, 158 (E. & A. 1946); Akrep v. Akrep , 1 N.J. 268, 270 (1949); Pisciotta v. Buccino , 22 N.J. Super. 114, 116, 117 (App. Div. 1952); Brown v. Brown , 34 N.J. Super. 261, 264 (Ch. Div. 1954). ...