Ristine v. Ristine

• Decision Date: 21 February 1834
• Citation: 4 Rawle 460
• Parties: RISTINE v. RISTINE.
• Court: Pennsylvania Supreme Court

4 Rawle 460

RISTINE v. RISTINE.

Supreme Court of Pennsylvania.

February 21, 1834

APPEAL.

Adultery committed by the husband after the wife has separated herself from him, is no bar to his obtaining a divorce, in consequence of the wife's wilful and malicious desertion, and absence from his habitation without reasonable cause, for the space of two years and upwards.

APPEAL from the decree of the Court of Common Pleas of Philadelphia County, dismissing, with costs, the libel of John Ristine, praying for a divorce from his wife Elizabeth Ristine.

The libel set forth that the parties were married on the nineteenth of November, 1819, and lived together until November, 1823, and that since that time the respondent had " wilfully and maliciously deserted, and absented herself from the habitation of the libellant without any just or reasonable cause, and such desertion had persisted in for the term of two years and upwards, and yet continued to absent herself from the said libellant," and prayed that he might be divorced from the bond of matrimony.

The answer to the libel stated, First, that the respondent did not maliciously desert and absent herself from the habitation of the libellant without reasonable cause, but that on the contrary the libellant had compelled her to do so by his cruel conduct.

Secondly, That the libellant since their separation had lived in habits of adultery with Ann Sweeninger, and had thereby forfeited his right to claim a decree in his favour.

The libellant took issue on the first branch of the answer and demurred to the second. The respondent joined in the demurrer, which the court overruled, and made a decree dismissing the libel and directing the libellant to pay all the costs.

Campbell for the appellant, referred to the act of the thirteenth of March, 1815; see 7 Purd. Dig. 213.

Scott contra. cited Paynter on Marriage and Divorce, 222, 226. (note.) Brisco v. Brisco, 2 Adam's Eccl. Rep. 259. Sullivan v. Sullivan, Id. 299.

OPINION

KENNEDY J.

We think that the Court of Common Pleas erred in rendering a judgment upon the demurrer in favour of the defendant. The proceeding in this case is founded upon our act of assembly passed the thirteenth of March, 1815, Purd Dig. 212. (1831). The first section enacts, that " When a marriage hath been heretofore, or shall hereafter be contracted and celebrated between any two persons, and it shall be judged in the manner hereinafter mentioned, that either party at the time of the contract, was, and still is naturally impotent or incapable of procreation, or that he or she hath knowingly entered into a second marriage, in violation of the previous vow he or she made to the former wife or husband, whose marriage is still subsisting, or that either party shall have committed adultery, or wilful and malicious desertion, and absence from the habitation of the other, without reasonable cause, for and during the term and space of two years; or when any husband shall have by cruel and barbarous treatment endangered his wife's life, or offered such indignities to her person as to render her condition intolerable, and life burdensome, and thereby force her to withdraw from his house and family; in every such case, it shall, and may be lawful for the innocent and injured person to obtain a divorce from the bond of matrimony." By the seventh section it is further enacted, that " in any action or suit commenced in the said court for a divorce for the cause of adultery, if the defendant shall allege and prove that the p...