35 Del. 301 | Del. Super. Ct. | 1933
delivering the opinion of the Court:
The annulment of the marriage is granted upon both grounds alleged in the petition.
This Court, in Williams v. Williams, 2 W. W. Harr. (32 Del.) 39, 118 A. 638, held that fraud constituting a ground for annulling a marriage under the Revised Code of 1915, § 3004, paragraph d, must be fraud which went to the very essence of the marriage contract. In this case the fraud alleged and proved by the plaintiff does go to the essence of the contract relation. The authorities are uniform in holding that the concealment of a venereal disease of a serious nature and incurable in character constitutes a valid ground for annulment of marriage on the ground of fraud. Ryder v. Ryder, 66 Vt. 158, 28 A. 1029, 44 Am. St. Rep. 833; Crane v. Crane, 62 N. J. Eq. 21, 49 A. 734; Svenson v. Svenson, 178 N. Y. 54, 70 N. E. 120; Meyer v. Meyer, 49 How. Prac. (N. Y.) 311; Anonymous, 21 Misc. 765, 49 N. Y. S. 331; C— v. C — , 158 Wis. 301, 148 N. W. 865, 5 A. L. R. 1013, and note page 1022.
2nd. The petitioner has brought himself clearly within the provisions of the cited statute set forth as the second ground for annulment. It is true that the cause of action is not listed among the causes set forth in the divorce statute as a ground for annulment of marriage, but by act of the legislature it is expressly stated that it is unlawful for any person who is venereally diseased to marry and that the marriage at the instance of the innocent party is voidable. The plaintiff has been proven to have been the innocent party and the defendant is proven to have been afflicted at the time of the marriage with an incurable case of syphilis. Under the statute the marriage is voidable. While the statute is silent as to the form of action to be made use of by the injured party, I think it clear that annulment is the proper remedy.
