Raymond v. Raymond

• Decision Date: 15 November 1909
• Citation: 79 A. 430
• Parties: RAYMOND v. RAYMOND.
• Court: New Jersey Court of Chancery

79 A. 430

RAYMOND

v. RAYMOND.

Court of Chancery of New Jersey.

Nov. 15, 1909.

Petition for divorce by Elizabeth G. Raymond against Thomas L. Raymond. Finding by a master that petitioner established ground for divorce.

Collins & Corbin, for petitioner.

VAN SYCKEL, Special Master. The petitioner was married to Thomas L. Raymond, the defendant, at the residence of her father in Newark, N. J., on the 23d of April. 1903. In a few days thereafter they took a house in Orange, N. J., where they lived nearly two years. For a short time they occupied the same bed, and then, at the request of the defendant, they continued to occupy single beds in the same room as long as they lived together. There was no sexual intercourse while they occupied the same bed. Soon after they slept in separate beds, the wife requested the defendant to have sexual intercourse with her, and he refused. They moved from Orange to a house in Roseville, N. J., where they lived together nearly two years, and from there they moved to Newark, N. J., where they kept house, and continued to live until May, 1909. During all this time they occupied single beds in the same room. While they lived in Roseville, she again asked him to have sexual intercourse with her, but he refused to do so, saying to her: "If you can't live with me as you are, you can get to hell out." At other times he swore at her and treated her with violence without cause. He has never had sexual intercourse with her. In May, 1909, she left her home in Newark, and went to the house of her parents, who live there, and where she has since remained. She informed her father of the facts above set forth, and he advised her to go and see her husband, and have a talk with him. She complied with that request and went back to her husband's house, and told him she intended to leave him. He replied she had better wait, and she said to him, "If I do remain, will you be a husband to me," but he again said he would not. Thereupon she left him, and has since lived with her father in Newark. Dr. Edward J. Ill of Newark, a physician and surgeon of great experience and high repute, whose specialty has been and is abdominal surgery and female complaints, testified that in June, 1909, at the request of the petitioner's father and with her consent, he made a physical examination of her person and her private parts for the purpose of ascertaining whether her marriage had been consummated. He found that she was still a virgin; that she was normal in every way physically, well formed in all respects, and attractive in person. This sufficiently corroborates the petitioner. On the first of July. 1909, she filed her petition for divorce on the ground of desertion.

There is difficulty in defining with accuracy what constitutes desertion. It is not an abnegation of all marital rights. Hardy on Divorce, p. 17; Nelson on Divorce, 5 54; Thompson v. Thompson, 1 S. & T. 233. What is desertion must depend materially upon the language of the statute which makes it cause for divorce. Our statute provides that for desertion the Court of Chancery may decree a divorce from bed and board forever thereafter. The Massachusetts statute provides that divorce may be granted where one of the parties utterly deserts the other. Under that statute, the Massachusetts court in Southwick v. Southwick, 97 Mass. 327, 93 Am. Dec. 95, refused a divorce for denial of sexual intercourse. In the subsequent case—Magrath v. Magrath, 103 Mass. 577, 4 Am. Rep. 579?divorce was decreed, although the husband supported the wife, but did not live with her. This was a modification if not an abandonment of the rule adopted in 97 Mass., 93 Am. Dec. The Massachusetts cases cannot be regarded as authority here. The relation of marriage cannot exist between man and man, or between woman and woman. The human race was created male and female with the manifest purpose of perpetuating the race. Marriage without sexual intercourse utterly defeats its purpose, as sexual intercourse except in the marital relation is contrary to the divine law, and criminal under our laws. All other duties which inhere in the marriage relation can be contracted for, and performed without violating any law, before marriage. The controlling purpose of marriage is to enable the sexes to gratify lawfully the natural desire for procreation which has been implanted in them, that the race may be preserved upon the earth. If either party may refuse to consummate the marriage, and still hold the other in the bond of matrimony, it is apparent that licentiousness would be encouraged and promoted, and we would become a race of bastards. There is nothing degrading in this view of the marriage state. It is in fulfillment of the design of Providence. All other marital duties are incidental to the dominant object, and human experience has shown that they will not be performed through affection, but only through coercion where the supreme power is disregarded. If husband or wife may and does refuse to consummate the marriage, the home upon which society depends for virtuous living and which is the nursery for the rearing of children in all that is ennobling in life will cease to exist. Marriage is encouraged for reasons of public policy and morality, and the parties should not be held in an unnatural relation, repugnant to sex, and promotive of adultery. It cannot be doubted that marriage would never be contracted if it was not to be consummated by sexual intercourse.

That the willful denial of this controlling right in the marital relation constitutes desertion within the contemplation and meaning of our statute is not without authority to support it. "Where the husband puts an end to what is lawful in marriage and unlawful in every other relation—to what distinguishes marriage from every other relation—this by the better opinion constitutes matrimonial desertion, though the deserting party consents still to live in the same house with the other." 1 Bishop on Marriage and Divorce, § 1676. "Sexual intercourse is of the essence of marriage, without which it cannot exist in its proper form. * * * Indeed, there is but one thing which is special to marriage, and is lawful in no other relation. All else pertaining thereto a man and woman may mutually contract for and do without taking the first step towards marriage. The unavoidable conclusion from which reasoning is that the married party who permanently and irrevocably withdraws from all that is peculiar to marriage, whatever incidentals he may adhere to, commits matrimonial desertion." 1 Bishop, Marriage & Divorce, § 1678. Hardy on Divorce, p. 19, after referring to cases to show that it is difficult to give an exact definition of desertion, says: "Cohabitation may be put an end to by other acts besides that of actually quitting the common home. This done willfully against the wish of the other party, and in execution of a design to cease cohabitation, would constitute desertion." Nelson on Divorce, § 54, says: "Desertion as a cause for divorce is a willful cessation of the marital relation without...