Anders v. Anders

224 Mass. 438 | Mass. | 1916

Loring, J.

It was decided in Dickinson v. Dickinson, [1913] P. 198, that wilful and persistent refusal on the part of the wife to allow any marital intercourse was ground for a decree of nullity of the marriage at the suit of the husband. The earlier cases in England had proceeded upon the ground that in such a case incapacity in fact on the part of the wife must be made out to enable the husband to get such a decree. But upon great consideration it was held in that case that the objects for which matrimony exists are as much defeated in case the wife wilfully persists in refusing to have marital intercourse when she can as they are in a case where she is willing but for some reason cannot.

It has been decided here on the authority of the English cases preceding Dickinson v. Dickinson, ubi supra, that incapacity is ground for a decree of nullity. S - v. S -, 192 Mass. 194. That was a case of partial malformation in both the husband and wife which resulted in incapacity in case of the two. There is an earlier case in this Commonwealth in which it was held that utter denial of marital intercourse was not ground for a decree of nullity. See Cowles v. Cowles, 112 Mass. 298. In that case no consummation of the marriage had ever taken place. The whole contention was disposed of in that case in less than two lines and in these words: " It plainly does not go to the original validity of the marriage, and affords no ground for declaring the nullity of it.” Interpreting the terms of that opinion in the light of the libellant’s brief in that case it is pretty plain that in deciding Cowles v. Cowles this court did ■ not have in mind the case of a woman going through the marriage ceremony with a preconceived intention never to allow marital intercourse. • ’

But however that may be, the facts in the case at bar go far beyond those in Cowles v. Cowles. In the case at bar the libellee went through the marriage ceremony with an intention never to perform any one of the duties of a wife. She went through the ceremony solely to secure a right to bear the name of a married woman and in that way to hide the shame of having had an illegitimate child, intending to leave her husband at the church door and not see him again. That plan she carried into effect. It is settled that a contract for the sale of goods is induced by fraud and for that reason voidable where the purchaser had an intention when the contract was made not to perform his promise to pay for them. If an intention not to perform his promise renders a contract for purchase of property voidable, a fortiori the same result must follow in case of a contract to enter into "the holy estate of matrimony.” See generally in this connection Barnes v. Wyethe, 28 Vt. 41.

Cases, where a defendant in a bastardy complaint goes through the form of marriage with the woman in question to secure his discharge intending never to live with her, well may involve other considerations. See in this connection Bish. Mar. Div. & Sep. § 476, and cases there cited.

We are of the opinion that upon the facts set forth in the report the petitioner is entitled to a decree.

So ordered.