6 Paige Ch. 175 | New York Court of Chancery | 1836
When this case' was formerly before me, upon the application for the reference to the master, and for special directions as to the nature and the kind of proofs which he was to receive to establish the fact of the alleged impotence, I arrived at the conclusion that to authorize this court* or any other tribunal, to annul a marriage on the ground of the physical incapacity of one of the parties, there must be satisfactory proof not only of the existence of the alleged incapacity at the time of the marriage, but that it must also be such an incapacity as was incurable. In other words, a physical incapacity which tiould not be remedied or removed by proper medical treatment, or by a surgical operation. And from an examination of the testimony which is annexed to the master’s report here, I have not been able to bring my mind to the conclusion that this is a case of incurable impotence which can justify me in pronouncing the marriage between these parties a nullity.
From the defendant’s oath, as well as from the medical examination which has béen had by Dr. Payne the witness, there appears to be no doubt of the fact that the wife is still virgo intacta. And as the doctor states that the hymen is unusually firm, dense and strong, it is probable that it could not have been broken by the natural means, even if the mar
The fact that the defendant has no wish to return to reside with her husband, and therefore will not consent to the slight surgical operation which may perhaps be necessazy to remove the incapacity, is no ground for annulling the mai’riage, any more than if she refused to cohabit with him when no pretence of disability existed. That is a matter to be settled with her own conscience and her lawful hus*
The complainant’s bill must therefore be dismissed*