Appeal, No. 17, Feb. T., 1957, from decree of Court of Common Pleas of Lackawanna County, Nov. T., 1955, No. 276, in case of Earl J. Travis v. Alice Travis. Decree affirmed.
D. H. Jenkins, with him Jenkins & Ligi, for appellant.
Sidney Z. Levy, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 183 Pa. Super. Page 274]
In this action in divorce the plaintiff-husband sought to terminate his marriage with the defendant on a charge, among others, of fraud at its inception. We are not here concerned with plaintiff's charges of cruelty and indignities to the person. As to them there was ample evidence to support the lower court's finding that plaintiff had failed to meet his burden of proof and that he was not an injured and innocent spouse. Plaintiff's allegation of fraud is that she had given birth to an illegitimate child in 1934 and did not apprise plaintiff of that fact prior to her marriage with him, some two years later. A divorce was likewise refused by the lower court on that charge.
These facts are admitted: When the child was born in June 1934 the defendant was but 18 years of age. She and the plaintiff were married on September 30, 1936. Shortly thereafter the boy was legally adopted by defendant's parents, as their son. He lived with them for eleven years but in 1945 he was taken into
[ 183 Pa. Super. Page 275]
the house of the parties to this action. When plaintiff consented to the arrangement he believed that the boy was his wife's brother. In the present action, brought in 1955 the plaintiff for the first time asserted fraud at the inception of the marriage by reason of the failure of defendant to divulge to him before he married her that she had given birth to the child.
There is a sharp conflict in the evidence as to whether plaintiff knew that defendant had an illegitimate child when he asked her to marry him. She testified that she had made a full disclosure of that fact to the plaintiff and that he said: "... it didn't make any difference to him. He loved me and that is all that mattered to him, that I would marry him." To this effect defendant was corroborated by her mother. On the plaintiff's denial that defendant had disclosed her prior lapse from virtue the lower court resolved the issue of credibility in her favor. We too find her testimony credible, but we are not deciding this appeal on a finding of a full disclosure by the defendant in that respect.
In a marriage contract there is no implied warranty by either party of premarital chastity. A man may make a woman's previous continence a condition of his promise to marry her; but if her virginity is a controlling consideration as to him it is incumbent on him to make due inquiry in an effort to ascertain the fact and not ask the law, later, to relieve him from his marriage contract because of his wife's premarital lapse from virtue. Accordingly the general rule is that failure to divulge an antenuptial incontinence by a woman does not in itself constitute fraud, upon which an annulment of the marriage by judicial decree ...