Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
This is an appeal from a dismissal after hearing of an uncontested action for divorce on grounds of desertion. The parties were married September 16, 1950. Plaintiff left the defendant November 19, 1954, she testified, because he refused her request to allow her to have children. The complaint herein was filed March 2, 1955. It recites a desertion of the plaintiff by the defendant ever since the marriage date by reason of his refusal to have sexual relations with her "without the use of a prophylactic or of some other instrumentality which would prevent her conceiving a child"; that this was contrary to her wishes; that she often "asked the defendant to have normal and uncontracepted intercourse with her which he absolutely refused to do."
At the trial she testified that from their marriage date until the summer of 1954 she had sexual intercourse with the defendant "a few times a week," the defendant, however, always using a contraceptive device; that prior to the marriage she had discussed with him her desire to bear children and that he did not then evince any objection; that "during the first year of marriage" (but without indicating precisely when) he explained to her he didn't want children until he had paid for the furniture; that "after the first year" of the marriage they frequently discussed his use of contraceptives and "he said that he didn't want any children until he owned his own home"; that they frequently argued over her bringing the subject up.
She testified that on June 12, 1954 and on July 19, 1954 she left him after arguments and that on each occasion he sought her out after a day or two and induced her to return on the promise "to give me children right away"; but that he did not keep his promise but continued the use of contraceptives during intercourse with her. After the July return
she says "intercourse was far and few between, because I knew he was just tricking me to stay." On October 15, 1954 she withdrew entirely from marital relations with defendant, and, as stated, left him on November 19, 1954. He never thereafter sought her out.
There was testimony by the plaintiff's mother to the effect that about a year after the marriage she asked defendant why they were not having children and that he said they were waiting until the furniture was paid for; that later he told her they wanted to wait until they had a car; also that he said he did not like children. She corroborated the solicitations by defendant of plaintiff's return to him when she left in June and, again, in July of 1954, and his promises then to "have a baby if she would go back." Other relatives of plaintiff testified concerning invidious remarks by defendant on the subject of children.
The foregoing constitutes the substance of plaintiff's case. The right to relief was rested before the trial court upon Kreyling v. Kreyling , 20 N.J. Misc. 52, 23 A. 2 d 800 (Ch. 1942). The trial court held that case not applicable, construing it to hold only that the refusal of a spouse to have uncontracepted sexual intercourse will justify the other in refusing any sexual relations at all and that if the attitude of the offending spouse continues thereafter in opposition to natural intercourse for the statutory period of two years a cause of action for divorce on the ground of desertion will mature. The court consequently held that here, where the action was instituted less than five months after the last marital relations, the cause of action was not ripe for suit. The position of the trial court comports with the holding in the Kreyling case on its facts. There the evidence was that the defendant husband refused to permit the petitioner to have children and that contraceptives were used, she submitting unwillingly, during a three-year period of cohabitation. She then ceased marital relations because he said he would never consent to have uncontracepted intercourse with her. More than two years later, his attitude persisting, she filed an action for divorce for desertion and was successful.
The present plaintiff strongly relies upon the following dictum by the court in the Kreyling case (20 N.J. Misc. , at page 59):
"Where both husband and wife willingly indulge in birth prevention no legal problem arises, the matter being solely one for the individual consciences of the parties, honestly formed according to their religious and moral beliefs. Where, however, as the evidence in the instant case shows, one of the parties, the defendant, solely for his own personal selfish convenience, or, as he puts it, so that he may enjoy the luxuries of life, insists upon contraception to prevent his wife from becoming a mother, he being the active agent in the use of the contraceptive device over her continued protests and against her will, it must be said that such conduct persisted in willfully, obstinately and continually for two years is cause for divorce on the ground of desertion."
For present purposes it is not necessary for us to decide whether, under any conceivable set of facts, the statutory desertion period will run during a continuous cohabitation of married people regularly experiencing sexual relations wherein contraception is being effected by one spouse genuinely against the will and bona fide protests of the other. We do not consider such a case made out here on the record before us.
It is the law of this State that the unjustified refusal of sexual intercourse persisted in willfully, continuously and obstinately by a spouse for a period of two years constitutes a ground for the dissolution of the marriage for the cause of desertion. See Crowell v. Crowell , 33 N.J. Super. 272, 274, 275 (App. Div. 1954) and the cases cited therein. We have no doubt that it is a corollary of that rule, in principle, as first articulated in the Kreyling case, that the right of a spouse to the sexual cooperation of an apt mate toward the procreation of children of the union is so primary an incident of the institution of marriage that its unjustified denial by contraception is an act of desertion by the offending spouse. See Fink v. Fink , 30 ...