48 N.J. Eq. 364 | New York Court of Chancery | 1891
This is a suit by a wife against her husband for divorce. The charge is adultery. The husband’s guilt is proved. There is-no difficulty on that score, but the case nevertheless presents ai debatable question, and that is, whether all the wrongs on which the complainant’s right of action rests have not been pardoned?
The parties were married in August, 1867. They havé five children. They all live with their mother. The proofs show that the defendant induced another woman, by falsely representing himself to be a single man, to enter into a contract of mar-' riage with him, in November; 1881, and that he and she, from' that date on until April, 1889, lived together as husband and wife. During the same period the defendant also lived with the complainant as his wife. He, however, spent the greater part of his time with the other woman. His adulterous intercourse with her extended over a period of more than seven years. In April, 1889, this other woman brought a suit for divorce against the-defendant, for adultery, in the superior court of the city of New York. He was then a citizen of this state, and notice of that suit was given to him by publication in a New York newspaper. The complainant saw that publication soon after it was ihade, and she admits that it led her to suppose that the defendant had lived with this woman as his wife. She did not see the defendant, after the publication came to her knowledge, until the 29th day of May following. She then accused him with having committed adultery with this woman. He assured her, with
The law is settled that a wife, by voluntarily having sexual intercourse with her husband, after she knows that he has committed adultery, and that she can prove it, thereby pardons his' ■offence. 2 Bish. Mar. & D. § 43; Quincy v. Quincy, 10 N. H. 272, 274. Such act necessarily implies forgiveness. A husband by committing adultery violates one of the most sacred duties imposed upon him by the marriage contract, and by his wrong forfeits all his rights under the contract. By his infidelity he puts it in the power of his wife to have the bond which binds her to him dissolved; it is, therefore, entirely consonant with both reason and justice that if she freely consents to sexual intercourse, after she has full knowledge of his guilt, that her consent should operate as a pardon of his wrong. But condonation in such cases is always conditional and limited; the party forgiven must, to retain the benefit of the pardon, treat the other, in the future, with conjugal kindness and fidelity; and, as a general •rule, the pardon extends only to such offences as are known to the pardoning party when the intercourse occurs. With regard to the limitation of this rule, Bishop says,: “Alike, in reason and in law, forgiveness cannot take place without a knowledge of the existence of the thing to be forgiven, so that such knowl
The principles above stated must control the decision in this case. And they make it clear, as I think, that the complainant is entitled to a decree. The legal effect of the sexual intercourse-which she had with the defendant on May 29th was to condone-
■ The defendant is also before the court on an order to show cause why he should not be adjudged guilty of. contempt for disobeying an order requiring him to pay alimony. The proofs are not sufficient to support an order declaring that he has been guilty of willful disobedience, and the order to show cause must, therefore, be discharged.