32 S.E.2d 764 | Ga. | 1945
An equitable suit to annul a marriage is not maintainable in this State for causes recognized by the statute as grounds for a total divorce. Accordingly, a petition which alleged that the petitioner was induced by force and duress to enter into a purported ceremonial marriage with the defendant, who at the time was pregnant with a child of which he was falsely accused of being the father, that he had never had intercourse with her and had never lived with her after the marriage and never ratified the same, and that a court of equity should come to his aid to avoid a multiplicity of suits, since if a decree of divorce were obtained he would still be charged with the support of a child not his own, stated no cause of action, and the court did not err in sustaining the defendant's general demurrer and dismissing the action.
The defendant demurred to the petition as amended on the grounds, among others, that it set forth no cause of action, and that the petitioner had an adequate remedy at law by an action for divorce. The court sustained the demurrer, and the exception here is to that judgment. Counsel for the plaintiff in error concedes in his brief that, although it is alleged that the wife was pregnant before the petitioner entered into a marriage ceremony with her, he would not be entitled to a decree of divorce or annulment on that ground, since her condition was made known to him at the time. It is recognized that the action is maintainable, if at all, only because of the alleged force and duress which are specifically made grounds of divorce by the Code, § 30-102 (4). It is argued, however, that, though admittedly an annulment would have the effect of bastardizing the child born during wedlock, the child is not his, and a court of equity should come to his aid and grant relief which could not be had in an action for divorce, thus permitting him to overcome the presumption of parenthood and avoid a multiplicity of suits.
In Brown v. Westbrook,
Candor requires the admission that, as contended by the plaintiff in error, a decree of divorce would not bring to him the relief that would be had by annulment. Where a decree of divorce is rendered, the legislature has wisely provided that all children born in wedlock, or within the usual period of gestation thereafter, are presumptively legitimate, and though such presumed legitimacy may be rebutted, this strong presumption can not be overcome, where possibility of access exists, except by clear and convincing proof. No man with a proper regard for his responsibility as a father would fail to approve this humane consideration extended by law to his children though they be the issue of a marriage into which he was induced to enter by fraud, force, or duress. But where a child, though born during the period of wedlock, is not in truth his own, what mortification and pain could be greater than that under which he must stand before the public as the putative father of one whom he knows to be not of his own blood, and who, until the presumption be removed, will in his eyes be the *713
living reminder of the wrong visited upon him! A decree of annulment would place the child in the status of a bastard, and thus render him incapable of inheriting from the putative father. Whether or not this provision of the law as to disability to inherit be salutary and wise, assuming the child to be the offspring of the putative father, the bastardizing of one who is begotten by another would be simple justice to a stranger in blood, and as an abstract principle it might be argued with much plausibility that a court of equity upon appropriate pleadings should put at rest in an annulment proceeding all questions as to the status of the child. However, all constitutional and legislative declarations upon the subject of the dissolution of the marriage relation show an intention that only by an action of divorce may this be accomplished. By an act approved February 22, 1850 (Ga. L. 1849-1850, p. 151, Cobb's Digest, 226), the legislature, at a time when the only grounds at common law authorizing a total divorce were pre-contract, consanguinity, affinity, and corporeal infirmity (see Head v. Head,
Judgment affirmed. All the Justices concur.