Hartman, J.c.c. (temporarily assigned).
This action to annul a marriage on the ground of impotence is a case of novel impression in New Jersey and, perhaps, in this country, in that the wife, while still a virgin, with an intact hymen, suffered a miscarriage during the marriage. The husband seeks the annulment, charging his wife with being physically and incurably impotent.
The question to be determined is whether a virgin wife, capable of procreation, can legally be declared to be impotent so as to warrant annulling the marriage. I have decided this question in the affirmative and will grant the husband an annulment.
The action is not contested on the merits. The wife filed an appearance seeking to be heard as to certain property rights which claims were withdrawn by her attorney at the final hearing.
I am satisfied that the evidence supports the following findings of fact. The parties were married in this state on July 25, 1964. Numerous efforts at sexual intercourse proved to be abortive because of the inability of the female organ to permit penetration to the slightest degree. On one occasion the husband used force in his attempt to penetrate. This resulted in his ejaculating against the vulva, causing a "splash pregnancy".
The husband urged his wife to see a doctor. At first she refused to do so. She asked him to give her time, that she was nervous, that eventually it would work out. Although they continued to try, the situation did not change and the parties separated. At that time neither of them were aware that conception had taken place.
A few months thereafter the wife advised the husband that she was then prepared to see a doctor because she thought she was pregnant. In November, 1965, they both went to see Doctor George Massell, an obstetrician and gynecologist. The wife complained of lower abdominal cramps; she had missed a period; about two weeks before this visit to the doctor she had "spotted".
The doctor attempted to examine her pelvically by manual examination. He testified that this proved to be impossible. Two days later the doctor learned that her bleeding had progressed and he admitted her to the hospital. He again found it impossible to examine her physically but her symptoms indicated early miscarriage. In the operating room she was anaesthetized and dilated at which point it was discovered that she had an intact hymen. An incision was made into the hymen and the doctor proceeded to perform a D & C for the miscarriage.
It was the doctor's opinion that there had been no penetration by the husband beyond the hymen, and that the wife was suffering from a firm, fixed, deep-seated psychological problem. When asked how a pregnancy could occur in a woman whose hymen was intact he testified that this
was possible and that it was not unknown in medical science. To use his own expression, it was a "splash pregnancy".
A few months after the operation the parties attempted intercourse again with the same negative results. They then returned to Doctor Massell to seek his help in repairing the problem. The doctor recommended a gynecologist in New York who, he advised, had a great deal of experience with psycho-sexual problems. Doctor Massell had little confidence, however, that psychology or psychogenic treatment of the wife could correct her condition. He felt it was too deep-seated despite the fact that she loved her husband and still was unable to have intercourse with him. After seeing the New York gynecologist the wife was recommended to a psychiatrist; after ...