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D v. C

Decided: June 29, 1966.

D, OTHERWISE C, PLAINTIFF,
v.
C, DEFENDANT



McAlevy, J.s.c.

Mcalevy

The question presented here is whether the plaintiff, an impotent wife, may successfully maintain an annulment action based on her impotence. This is a matter of novel impression in New Jersey.

The defendant, through his attorney, submitted generally to the jurisdiction of this court, but did not contest or appear at the time of the hearing.

After previous litigation between the parties, plaintiff filed a complaint for annulment on the ground that at the time of the marriage to the defendant she was physically and incurably impotent to consummate the marriage because she suffered from vaginismus, or some other disability with respect to the defendant, and that she was ignorant of such impotence at the time of the marriage, and that she has not subsequently ratified said marriage.

Plaintiff testified that at the time of the marriage she did not know of any reason why the marriage could not be consummated; that she realized there could be no consummation when the honeymoon ended; that the parties never succeeded in having sexual relations and have not attempted such relations since; that the marriage was never ratified; that on her return from her honeymoon she was examined by several doctors.

Dr. Mario V. Pizzi, a specialist in gynecology, testified he examined plaintiff on October 23, 1961, immediately after the honeymoon ended and found her to be a virgin, and that there were no physical obstacles in the plaintiff to the consummation of the marriage and that she was normal organically and anatomically. He further found there was no penetration.

Dr. Henry A. Davidson, a well-known psychiatrist practicing that specialty for 36 years, testified he examined the plaintiff on May 5, 1966 and found plaintiff suffered from vaginismus, "an emotional or mental disorder," which he described as "a spasm of the circular muscles around the vagina which under emotion tighten up becoming really rather rigid and the inability to relax them." He further testified that this condition is "involuntary" and that "it is incurable in reference

to this man," and that "there wouldn't be any medical method of treating it surgically."

Godfrey v. Shatwell, 38 N.J. Super. 501, at pp. 506-507 (Ch. Div. 1955), states:

"Impotence of either spouse in relation to the other may be either physical or psychical in origin. Herzog, Medical Jurisprudence (1931), ยง 1184, p. 816. * * * Where psychological in origin the condition may be quoad hanc, i.e., as to the spouse only. See Tompkins v. Tompkins, 92 N.J. Eq. 113, 114 (Ch. 1920); Grobart v. Grobart, 107 N.J. Eq. 446, 447 (Ch. 1931), affirmed 109 N.J. Eq. 129 (E. & A. 1931)."

N.J.S. 2A:34-1 reads as follows:

"Judgment of nullity of marriage may be rendered in ...


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