
    Elizabeth Clara Fehr, born Elizabeth Clara Klein, petitioner, v. Joseph Fehr, defendant.
    [Decided December 6th, 1920.]
    'Where a husband at the time of marriage suffered from a physical condition which rendered sexual intercourse with a normal woman impossible, the wife was entitled to a decree of nullity, although prior to the marriage the husband informed the wife that there could be no children but that sexual intercourse could be performed.
    On petition for nullity. On pleadings and proofs.
    
      Messrs. Kent & Kent, for the petitioner.
    
      Mr. J > Emil Walscheid, for the defendant.
   Lewis, V. C.

The petition is filed for the annulment of the marriage between petitioner, Elizabeth Clara Fehr, born Elizabeth Clara Klein, and the defendant, Joseph Fehr, under the statute providing for decrees of nullity of marriage (P. L. 1907 p. 474 § 1 subdiv. 111), wherein it is provided as follows:

“1. Decrees of nullity of marriage may be rendered in all cases when
“111. The parties, or either of them, was at the time of marriage physically and incurably impotent; provided, the party making the application was ignorant of such impotency or incapability at the time of the marriage, or has not subsequently ratified the marriage.”

Under the facts established bjr the testimony it appears that at the time of the marriage of the parties, which was performed ceremonially on May 27th, 1917, the defendant suffered from a physical condition which rendered sexual intercourse, with a normal woman, impossible. This resulted from a congenital disability, and, consequent, surgical treatment.; and I am satisfied from the evidence that that condition is permanent and incapable of being satisfactorily remedied.

The parties resided in New Jersey from a few days after the marriage until June 19th, 1919, when petitioner left defendant. Defendant has continued to reside in New Jersey to the present time.

Prior to the marriage defendant hayl informed the petitioner that there could, perhaps, be no children as a result of their union, because of a defect from which he suffered, but that sexual intercourse between them could be performed. Petitioner stated that immediately after the marriage she learned of the existence of defendant’s abnormality; and, as a matter of fact, he was never able to have -sexual intercourse with her. She continued to live with him, however, for about two years, in the hope that the condition might be remedied, but this was not done, and eventually her health became so impaired, and her nervous system so injin’ed as a result of the unnatural situation,' that she was obliged to separate herself from the defendant.

The evidence of the physicians shows that the petitioner is in all respects normal and apt for coition; but that, because of the defendant’s condition, sexual intercourse between these parties was impossible.

I shall, therefore, advise a. decree for nullity of the marriage as prayed for.  