137 Iowa 37 | Iowa | 1908
The parties hereto married December 12, 1905; he then being twenty years of age and she but seventeen years. They had been attending the local high school, and living with their parents, who had been near neighbors for many years. They cohabited until January 25, 1906, and on February 1st following this suit was begun, praying for divorce on the ground that at the time of their marriage defendant was pregnant by a person other than plaintiff, of which fact he was then ignorant. At the time of the marriage plaintiff knew of her pregnancy, but supposed this was by himself. She gave birth to a 'child April 2, 1906. The only evidence tending tb support the contention that the
Aside from exception based on these grounds, we have discovered but one case awarding relief where there has been coition between the husband and wife prior to.marriage, and that,was by an equally divided court. Sissung v. Sissung, 65 Mich. 168 (31 N. W. 770). In that case Morse and Campbell, JJ., were of the opinion that where a young man, inexperienced in the ways of the world and women, had intercourse with a woman then pregnant by another man, and upon her demand married her under the belief that prior to meeting him she had been chaste, with the laudable purpose of repairing the wrong he had done her
On the other hand, Sherwood and Champlin, JJ., after reviewing .the. decisions referred to and others, were of the opinion that “ when this girl yielded to the lascivious approaches of this complainant, and became defiled by him under the circumstances stated in the bill, she gave him evidence of her true character, and he was bound to take notice, at his peril, that others would be indulged by her under similar circumstances; and, when she engaged him in marriage, and told him she was pregnant by him, he had been sufficiently advised that the paternity of the child was liable to be in another, and if, without making any further investí
The section of the Code quoted contains no provision with reference to the prior relations of the parties to the marriage contract, and, if their attempted coition shall defeat the relief by divorce where the wife is pregnant by a stranger at the time, this must be read into the statute by construction, or must result from holding that, owing to the husband’s participation in his wife’s incontinency, he has been put on inquiry as to her relations with other men, and cannot complain. But this would leave the unsophisticated and unwary without protection and condemn him who, with the best of motives, undertakes reparation for his supposed victim and compel him to suffer the consequences and burden of her deception. If the proof be of that character exacted in such cases, there can be no objection on grounds of public policy to granting a decree of divorce whenever it is made to appear that the wife at the time of her marriage was pregnant by another than her husband, of which fact he was unaware. As said by Morse, J., in the Michigan case: “ The essence of the marriage contract is wanting when the woman at the time of its consummation is bearing in her womb knowingly the fruit of her illicit intercourse with a stranger; and the result is the same whether the husband is ignorant of her pregnancy and believes her chaste, or is cognizant of her condition, but has been led to believe the child is his.”
In our opinion the illicit relations of the husband with his wife before marriage is not a bar to the remedy created by statute. There is no more reason fbr denying the hus-‘ band relief in such a case than there would be to refuse to make inquiry concerning the- paternity of a child begotten after marriage. In 2 Starkie on Evidence, 196, in dis
Some question is raised as to whether the rule should be applied in other than causes in which the question of legitimacy only is involved. In Prof. Wigmore’s notes it is said to obtain in all cases, and an examination of the authorities sustains this view. Thus in Parker v. Way, supra, such evidence was held to be inadmissible in an action on a promissory note; in Tioga County v. South Creek Twp., supra, to determine the settlement of a pauper; in State v. Wilson, supra, in bastardy proceeding; in Commonwealth v. Shepherd, 6 Bin. (Pa.) 288 (6 Am. Dec. 449), an indictment for fornication resulting in the birth of a bastard; in Rabeke v. Baer, supra, an action for seduction; in Simon v. State, 31 Tex. Cr. R. 186 (20 S. W. 399, 716, 37 Am. St. Rep. 802), an indictment for incest; in Egbert v. Greenwali, supra, an action for criminal conversation; in Tate v. Penne, 7 Mart. N. S. (La.) 548, suit for the possession of slaves; in Cross v. Cross, 3 Paige (N. Y.) 139 (23 Am. Dec. 778), passing on the custody of children in a suit for divorce; in Chamberlain v. People, 23 N. Y. 85 (80 Am. Dec. 255), an indictment for perjury committed in a suit for divorce on the ground of adultery. In Corson v. Corson, 44 N. H. 587, such evidence was held not to be admissible in a suit for divorce on the ground of adultery. It is safe to say, then, in the light of authority, that neither the declarations nor the testimony