Puuku v. Kaleleku

• Decision Date: 31 May 1890
• Citation: 8 Haw. 77
• Parties: REBECCA P. PUUKU v. PUUKU KALELEKU.
• Court: Hawaii Supreme Court

8 Haw. 77

REBECCA P. PUUKU v. PUUKU KALELEKU.

Supreme Court of Kingdom of Hawai'i.

May 31, 1890

HEARING APRIL 25, 1890.

QUESTION RESERVED BY MCCULLY, J.

Syllabus by the Court

Question Whether proof of non-consent of a party to marriage can in this Kingdom be held a ground for the annulment of marriage.

Held that the power to anuul marriage is based solely on the statute, is limited by it, and that a decree of annulment must state a statute ground therefor; that hence a decree cannot be granted in the case submitted.

J. M. Davidson, for the petitioner.

JUDD, C.J., MCCULLY AND BICKERTON, JJ. DOLE, J., ABSENT.

OPINION

MCCULLY, J.

This matter comes before this Court upon a question reserved by Mr. Justice McCully. He sent it up with a full report of the testimony and his findings thereon, as follows:

QUESTION RESERVED.

In the above recited testimony there is a disagreement only in one particular, the defendant testifying to a cohabitation at some time subsequent to the marriage, the plaintiff denying any cohabitation at any time. I think the latter testimony is consistent with the other proofs of non-cohabitation, and from my view of the witnesses it is the version which is to receive credit.

The case then stands, that the plaintiff never gave a consent to the marriage. It is true that she uttered an assent which was forced by the dominant authority of her chief, an assent evidently expressed, or not denied, before the minister who performed the marriage ceremony, but immediately interpreted and revoked by her escape. Only the clearest proof all around could bring me to this conclusion. I would not consider the mere denial of a young girl unsupported by circumstances and extraneous proof. It is here proved that the defendant never asked her to marry him. The parties had no social acquaintance with each other. I take the circumstance of non-cohabitation without considering whether under our statutes what is termed a consummation of the marriage would be necessary, and the failure of consummation would not be a ground of annulment (physical inability not being alleged).

Our statutes prescribe a ceremonial or formal marriage, not necessarily a religious one. They prescribe that a license to marry shall be obtained from an appointed agent, and that the ceremony be performed only by a person having an authorization thereto. These may be termed external provisions for the regulation of the making of marriages, acts required by other persons. As between the parties it is termed the marriage contract. C. L., p. 423. It is not expressed in our statutes that there must be the consent of each party thereto, but in my opinion so much as that is involved in the term contract. The doctrine of law respecting contracts must be applied; there must be a mutual consent, the consent of each party.

But the grounds for an annulment of marriage are distinctly prescribed. It is a statute power given to Justices of the Supreme Court, and the power is limited to what is granted. Any decree of annulment, it appears to me, must be based on one of the specific statute grounds.

I take leave to reserve for the consideration of the Court in Banco the question whether a proof of non-consent can be in this Kingdom held a ground for the annulment of a marriage.

BY THE COURT.

We believe the question here presented is new in this Court. It may be that the grave doubt whether the Court could go beyond the powers clearly given by statute has prevented an application for annulment of marriage on the ground of non-consent. It may be, and this seems probable, that no such case has been known where a non-consent, and a persistent after refusal to give consent, could be so clearly proved as has been in the case before us. We take it to be an absolute fact of the case that this plaintiff never gave the consent of her mind to this marriage.

The statute under which nullity of marriage may be made by the Court is Section 1313 of the Code. It provides that it may be pronounced for either of six enumerated causes existing at the time of the...