30 A.2d 365 | Pa. Super. Ct. | 1942
Argued October 9, 1942. Prosecution for nonsupport of wife. Before DANNEHOWER, J.
Order entered directing husband to pay specified monthly sum for support of wife. Defendant appealed. This is a prosecution under Section 733 of the Act of June 24, 1939, P.L. 872, 18 PS 4733, charging that defendant separated himself from his wife without reasonable cause and neglected to support her. The court found him guilty and made an order that he pay $60 a month.
It is conceded that relatrix is not defendant's wife. Throughout the period of approximately four years during which the parties lived together he was legally married to another woman, and the Mexican divorce which he procured in April 1937, after they had been living together for some months, and the subsequent marriage ceremonies, were nullities.1
The circumstances are these. Relatrix and defendant met in the summer of 1936 at defendant's home in Maine. Relatrix was there as a guest of defendant and his wife. A short time thereafter the husband and wife visited relatrix at her home in Bangor. Relatrix and defendant soon thereafter began an adulterous relationship which continued until they finally separated in October 1941.
Shortly after the inception of this relationship, defendant proposed marriage. Knowing that he was already married, they together consulted a lawyer in Maine who recommended the Mexican divorce after defendant had previously been advised he could not get a divorce in Maine. They later consulted a lawyer in *371 El Paso, Texas, and instituted, through him or under his guidance, the Mexican action. A decree was entered in June 1937. Two days later relatrix and defendant went through a marriage ceremony in Juarez, Mexico, and about a week later a second one in Phoenix, Arizona.
The applicable section of the Penal Code provides: "If anyhusband . . . . . . separates himself from his wife . . . . . . without reasonable cause or neglects to maintain his wife . . .. . ." (italics added) he may be arrested on information and the court may order him to pay such sum as it shall think reasonable and proper for the comfortable support and maintenance of the said wife.
This court has frequently held that the mere fact that a man and woman live together, even though for a long period of years, will not sustain an order for support under the Act in the absence of a legal marriage. Com. v. McDermott,
Much point has been made of the unfairness of permitting defendant to escape what some might well regard as an obligation to support the woman with whom he had lived for a number of years, ostensibly as hushand and wife, and whom he subsequently cast off. As we view it, the fairness or unfairness of defendant's conduct is not an issue. Defendant has been charged under the criminal provisions of an Act of Legislature which provides that "if any husband . . . . . . separates himself from his wife" without reasonable cause, etc. As in all other criminal proceedings, the burden is on the Commonwealth to prove facts which bring the case within the statutory provision. And if the provisions of the statute are not broad enough to punish a man who has been "unfair" to a woman not his wife, the remedy is with the law-making body.
Krause v. Krause,
We do not mean to repudiate the general doctrine that the validity of a divorce decree cannot be questioned by the spouse who obtains it. Restatement, Conflict of Laws, § 112. We limit ourselves to a holding that in a proceeding under Section 733 of the Penal *373 Code it may be questioned by the husband who procures the invalid decree, particularly where the relatrix participated in the procurement to the extent here shown.
The order is reversed and defendant discharged.