The petitioner, Fannie Heller, sued for the annulment of her marriage upon the ground that her husband, the defendant, Max Heller, was, at the time of marriage physically and incurably impotent The advisory master by whom the matter *Page 544 was heard found for the petitioner, and a decree nisi was granted accordingly. Defendant appeals.
The marriage was on August 28th, 1932. The parties separated November 2d 1932. Cohabitation was, therefore, limited to sixty-six days, and the opportunity for coition was still further reduced by three menstrual periods of the petitioner occurring during that time. The proceeding for annulment was begun November 10th, 1932. The defense was that the defendant is fully competent to consummate the marriage and that the failure of consummation was due to nervous resistance and assertions of pain by the petitioner.
The defendant is not without virile qualities. It is conceded that he regularly made sexual response to his wife's body by an erection and an effort at intercourse but that discharge took place before penetration was accomplished. The reason for the premature emission is ascribed by the wife to the husband's inability, and by the husband to the exercise of restraint occasioned by the wife's protestations. One of the medical witnesses produced by the petitioner testified that the probability of a cure attends such a condition as the petitioner imputes to the defendant. He also testified that the petitioner's vaginal opening was extremely resistant. There is further uncontradicted medical testimony that the defendant is capable of emitting semen containing live mobile spermatozoa.
The facts of marriage and of absence of coition are established. But the rule is that neither a divorce nor an annulment may be granted upon the uncorroborated testimony or admission of a party to the suit on any element in the proofs necessary to sustain the decree. Hague v. Hague,
The Divorce act (2 Comp Stat. p. 2021), upon which the suit is based, provides in section 1 (amended P.L. 1931 ch. 311) that "decrees of nullity of marriage may be rendered in all cases when * * * the parties, or either of them, was at the time of marriage physically and incurably impotent; provided, the party making the application was ignorant of such impotency or incapability at the time of the marriage, or has not subsequently ratified the marriage." The question of knowledge and of ratification are not raised. Conspicuous in the statute is the word "incurably," and not only therein but, in one phase or another, in the jurisprudence relating to the subject.
Impotence is defined as want of power for copulation (Kirschbaum v. Kirschbaum,
Chancellor Walker in the chancery case of Bissell v.Bissell, *Page 546
Incurable impotence is not a chance expression. It has long been recognized by the courts and the text writers as a definite and precise degree of the general physical defect to which it refers. It is the ground set up by the statute. We may not dismiss the word "incurably" from our view, nor may we acquiesce in the respondent's argument that the burden of disproving disability was on defendant. Petitioner made the charge. The burden was upon her to prove it. In A.B. v. C.B.,
In lieu or in amplification of proof, incurability may be presumed from the establishment of appropriate facts. On a showing of continued cohabitation, the wife meanwhile being apt and remaining a virgin, the husband will be presumed to be impotent to the degree required by the statute and the burden will be upon him to overcome the presumption by proof that he is not at fault. We have never fixed a definite period at the end of which the presumption would operate and do not feel warranted by the facts, the issue or the arguments in the instant case in doing so now. We are clearly of the opinion, however, that, having regard for the vicissitudes of life, a period of two months is wholly inadequate to cause the presumption to arise.
We conclude, therefore, that the petitioner did not prove her case. It follows that the decree must be reversed. The record will be remitted to the court of chancery for such disposition as is consistent with our views.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14. *Page 548