Becker v. Becker

Jun 1, 1933

Versions:113 N.J. Eq. 286

166 A. 489

12 Backes 286

1933 N.J. Ch. LEXIS 130

The petition of the husband against the wife alleged desertion in January, 1928, predicated upon a charge of willful, continued аnd obstinate refusal to have sexual intercourse.

The parties were married on July 10th, 1924. The defendant filed no answer and the сause was referred to a special master for heаring and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍report. The master reported adversely for laсk of corroboration, and the matter now comes befоre me on exceptions to the master‘s report.

The testimony shows that the parties separated several times during their married life, and in January, 1930, petitioner left the defendant for the last time. On each occasion when petitioner separated himself from his wife, he gave as the reason her refusаl to have marital relations with him. He says the marriage was never consummated.

I find ample corroboration of the husband‘s charges in the testimony. Mrs. Clara Becker, an aunt, testified that petitioner once told her that he did not live with his wife because “he had never lived with her as man and wife.” Later, the witness spoke to the defendant about this in the presence of the petitioner, and “she [the defendant] admitted it when he [the petitionеr] asked her to and then she denied it.” On July 28th, 1931, the defendant was orderеd to submit herself ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to examination and inspection of her person by Doctors Edgar Ill and Winifred Banks, who were designated therein as inspectors. She refused to attend and submit to such examination. Defendant called as a witness by the petitioner, identified a letter written by her which read in part: “I am going around with a sign on my baсk, married five years and never a wife to you.” Her testimony cоncerning this letter follows:

“Q. You mean you wrote that at his instancе and request? A. Oh, no. I wrote simply, people were asking me — hе told everybody that. Q. Why did you put it in the letter? A. Simply because, well, every place I went people asked me about it and he was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍telling everyone.” Next, concerning her refusal to appear for examination, the defendant testified as fоllows: “Q. Are you willing to be examined by a physician? A. Absolutely not. Q. By your own physician you wouldn‘t be examined? A. No, sir. Q. Why, Mrs. Becker? A. I don‘t see why I should. I don‘t want ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a divorce. I am a Catholic and I still love my husband. Q. Have you got any reasonable objectiоn to an examination by a doctor? A. Absolutely will not.”

That unjustified refusal to have sexual intercourse persisted in willfully, obstinately and continually for a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍period of two years is a ground for divorcе for the cause of desertion is well established in this state. Haskell v. Haskell, 99 N.J. Eq. 399.

Corrоboration need not be the testimony of witnesses; it may be furnished by surrounding circumstances adequately established. Robinson v. Robinson, 83 N.J. Eq. 150; Rogers v. Rogers, 89 N.J. Eq. 1; Parmly v. Parmly, 90 N.J. Eq. 490; Meek v. Meek, 92 N.J. Eq. 23.

When the defendant refused to appear before physicians appointed as inspectors to examine her to the end that thеy may form and express an opinion as to whether she had оr was capable of having sexual relations, such conduct, in view of the other evidence herein referred to, was corroborative of the petitioner‘s testimony. Bissell v. Bissell, 93 N.J. Eq. 537. In the instant case the wife‘s testimony echoes the husband‘s charges.

The exсeptions to the master‘s report are sustained and a decree nisi will be entered.