Singh v. Singh

• Decision Date: 06 February 1990
• Docket Number: No. 13698,13698
• Citation: 569 A.2d 1112,213 Conn. 637
• Court: Connecticut Supreme Court
• Parties: David SINGH v. Seoranie SINGH.

Page 1112

569 A.2d 1112

213 Conn. 637

David SINGH v. Seoranie SINGH.

No. 13698.

Supreme Court of Connecticut.

Argued Nov. 2, 1989.

Decided Feb. 6, 1990.

John Antkowiak, Certified Legal Intern, with whom was Keith W. Acker, Hartford, for appellants.

Heather J. Wilson, Asst. Atty. Gen., with whom were Jane S. Scholl, Associate Atty. Gen., and, on the brief, Clarine Nardi Riddle, Atty. Gen., for the State of Conn. as amicus curiae.

Before ARTHUR H. HEALEY, SHEA, GLASS, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is an appeal from the trial court's denial of the plaintiff's and the defendant's motion to open the 1984 judgment of annulment of their 1983 marriage in Connecticut. We transferred this case from the Appellate Court to this court pursuant to Practice Book § 4023. We find no error.

The factual background that generates the issue to be decided is the following. The parties, David Singh (husband) and Seoranie Singh (wife), were married on January 13, 1983, in Hartford. In their complaint, seeking an annulment, they alleged that their 1983 marriage was entered into "upon the mistaken belief by both parties that they were not related," but "they [had only] recently discovered that they are uncle and niece." There were no issue of this marriage. In 1984, the court, Hon. Simon Cohen, state trial referee, rendered judgment of annulment declaring the marriage null and void after finding, inter alia, that "[t]he marriage was entered into upon the mistaken belief by both parties that they were legally qualified to marry," but that "[both parties] have recently discovered that they are uncle and niece."

Thereafter, in November, 1988, both parties filed a motion to open the judgment. That motion alleged that, although the judgment found that they were uncle and niece and, therefore, not legally qualified to marry, in fact, since the wife's mother is the husband's half sister, the wife is the husband's half niece and not his niece. The parties also maintained that they sought the annulment only because of the advice of counsel that their marriage was, "without question," incestuous and void under our statutory scheme. See General Statutes §§ 46b-21, ¹ 53a-191. ² In view of the fact that our statute concerning kindred who may not marry does not mention "half nieces" or "half uncles" and no Connecticut decision extends the scope of the law's prohibition to relatives of the half blood, the parties claimed that the marriage "might well be deemed lawful and valid." They further alleged that they were remarried in August, 1988, in California where, citing People v. Baker, 69 Cal.2d 44, 442 P.2d 675, 69 Cal.Rptr. 595 (1968), they assert that the California Supreme Court has determined that marriages between uncles and nieces of the half blood are not proscribed by that state's incest statute. ³

The trial court, Kline, J., denied the motion to open the judgment of annulment. In doing so, it found that the wife was the daughter of her husband's half sister and that this half sister and the husband were descended from a common mother but different fathers. It noted that while there were some Connecticut cases ⁴ implicating the statute, there were no Connecticut cases specifically addressing the question whether persons of the half blood fall within the statutorily prohibited degrees of whole blood relationships. Further, the trial court not only said that a number of cases in other jurisdictions indicated that marriage or sexual intercourse between an uncle and niece of the half blood could be incestuous, but also opined that the texts seemed to be uniform that both at common law and by statute prohibited degrees of relationship by blood included persons of the half blood as well as of the whole blood. The court also stated that these authorities uniformly held that there is no distinction between the whole blood and half blood in computing the degrees within which marriages are prohibited as incestuous. The trial court also concluded that not only consanguinity but also the degree of the relationship between the parties was a basis for prohibiting certain marriages. Because § 46b-21 prohibits marriages between stepparents and stepchildren, the court inferred that it was not the actual blood relationship that appeared to concern the legislature but rather the degree or distance of the relationship between the parties indicating a legislative intent to prevent not only marriages of the whole blood but also those of the half blood. The trial court accordingly denied the motion to open and set aside the judgment of annulment. This appeal followed.

The issue to be decided is whether a marriage between persons related to one another as half uncle and half niece is incestuous under our statutory scheme and, therefore, void. See General Statutes §§ 46b-21, 53a-191. The parties maintain that such a marriage is not incestuous under our statutory law. The attorney general, who appeared as an amicus curiae, argued to the contrary. The determination of this question involves the interrelation and judicial interpretation of two statutes, §§ 46b-21 and 53a-191. This case, unlike State v. Skinner, 132 Conn. 163, 43 A.2d 76 (1945), or State v. Moore, 158 Conn. 461, 262 A.2d 166 (1969), to which counsel have referred, does not come before us on appeal from a conviction of the crime of incest. These cases, however, are instructive on the issue to be resolved in this case. ⁵

Historically, marriage between certain relatives "has been disfavored by all nations during all ages." F. Keezer, Marriage and Divorce (3d Ed.1923) § 170; 1 C. Vernier, American Family Laws (1931) § 37; 1 H. Clark, Law of Domestic Relations in the United States (2d Ed.1987) § 2.9; see Gould v. Gould, 78 Conn. 242, 244, 61 A. 604 (1905). Although incest was punished by the ecclesiastical courts in England, it was not an indictable offense at common law and punishment was left entirely to the ecclesiastical courts. See People v. Baker, supra; Cecil v. Commonwealth, 140 Ky. 717, 719, 131 S.W. 781 (1910); State v. Jarvis, 20 Or. 437, 439, 26 P. 302 (1891); 4 Blackstone Com. 4. "The ecclesiastical courts followed the interdiction of Levitical law which prohibited marriages between persons more closely related than fourth cousins unless a dispensation was procured from the Church of Rome; no distinction was made between persons related by affinity or consanguinity." People v. Baker, supra, 69 Cal.2d at 49, 442 P.2d 675, 69 Cal.Rptr. 595; see Butler v. Gastrill, Gilbert's Rep. 156, 156-57, 25 Eng.Rep. 110 (1721); State v. Tucker, 174 Ind. 715, 718-19, 93 N.E. 3 (1910). In 1540, during the reign of Henry VIII, a statute was passed regulating the degrees of relationship within which marriage was illegal. See 32 Henry 8, c. 38. That statute limited the prohibitions against marriage to relatives closer than first cousins, and although the ecclesiastical courts approved of the statute, the courts continued to make no distinction between relatives by consanguinity or affinity. People v. Baker, supra; Butler v. Gastrill, supra; The Queen v. St. Giles in the Fields, 11 Q.B. 173, 116 Eng.Rep. 441 (1847). "Consanguinity" is a blood relationship. It is the connection or relation of persons descended from the same stock or common ancestor. Black's Law Dictionary (5th Ed.). It is distinguished from "affinity" which, in turn, is the connection existing in consequence of a marriage between each of the married persons and the kindred of the other spouse. Id.; see Lavieri v. Commissioner of Revenue Services, 184 Conn. 380, 383, 439 A.2d 1012 (1981).

The initial departure of the American jurisdictions from the English law was to declare incest a crime. The crime of incest is purely statutory, and most states have a statute making it a crime. The statutes delineating incestuous relationships departed from the ecclesiastical law in two respects. The majority of states extended the criminal prohibitions to first cousins and beyond while other states imposed criminal penalties only where the relationship was that of consanguinity. People v. Baker, supra; F. Keezer, supra, §§ 171 and 172, pp. 220-22. As will be seen, Connecticut's incest statute followed the former course. While these statutes may vary in detail, they generally define incest as marriage or sexual intercourse between persons too closely related in consanguinity or affinity to be entitled to marry legally. See 72 A.L.R.2d 706.

In Connecticut, incest has been a crime since the incest statute was enacted in 1702 as part of "An Act to prevent Incestuous Marriages." General Statutes (1702-1733), p. 74; see Catalano v. Catalano, 148 Conn. 288, 290, 170 A.2d 726 (1961); Gould v. Gould, supra, 78 Conn. at 246, 61 A. 604. The 1702 act ⁶ prohibited marriages between persons within certain degrees of kinship including that of uncle and niece. Catalano v. Catalano, supra; Gould v. Gould, supra. In the 1875 revision, the language describing the degree of relationship, now appearing in § 46b-21, was adopted. General Statutes (1875 Rev.) § 1; Catalano v. Catalano, supra. There has been no substantive change in the language since that time. ⁷ Thus, since 1702, our incest statute has interdicted marriage between persons related by either consanguinity or affinity.

Initially, the parties claim that the trial court erred by adhering to a line of cases dating from the interpretations of the incest statute during the reign of Henry VIII ⁸ citing to the English statute of 32 Henry 8, c. 38. They concede that "[d]espite notable changes in sexual mores and in the very conditions which underlie the incest taboo itself, which have intervened since the time of Henry VIII, most Courts considering [the] question have been satisfied to mechanically reproduce the precedents of several hundred years ago." They, nevertheless, urge "a more modern approach to the construction of our incest statute" and maintain that they ...