I dissent from the decision about to be made. The statutory provisions now found in article 3, chapter 15 of the Code of Civil Procedure do not bar plaintiff's right to relief. Both plaintiff and defendant have been guilty of adultery, as was determined in an action previously brought by the defendant against the plaintiff for an absolute divorce. After the rendition of a decree therein, the defendant refused to live with the plaintiff or in any manner provide for her support. By subdivision 4 of section 1762 of the Code, the wife is entitled to a decree of separation and maintenance where the husband neglects or refuses to provide for her. Her prima facie right to relief is, therefore, conceded. The sole question is as to the sufficiency of the husband's defense. By section 1765, "The defendant may set up, in justification, the misconduct of the plaintiff; and if that defense is established to the satisfaction of the court, the defendant is entitled to judgment." What is the misconduct as intended by this section? Plainly only such misconduct as justifies the action or conduct of the husband in refusing to support her. It is urged that unquestionably the plaintiff's adultery was misconduct on her part. That is true, but the question is, was it misconduct towards her husband who himself had been guilty of a similar offense. Doubtless every dictate of honor, morality and self-respect should keep a wife pure even when her husband has done wrong, but if her only obligation to chastity rested on loyalty due to an adulterous husband, the plaintiff would not be subject to censure from the most strict of moralists. If the wife should commit an assault and battery on a third party or larceny and be sent to prison for either offense, it would undoubtedly be misconduct on her part, but would any one pretend that by reason thereof the husband was for ever afterwards relieved from the obligation of supporting her? In some states imprisonment under sentence for a felony is a ground for divorce; not so with us. Therefore, the simple question presented in this case is whether the defendant remains under any obligation to support the wife after the commission of adultery, he himself having been *Page 418 guilty of the same offense. It must be also borne in mind that there is here no claim that the plaintiff abandoned her husband's home and lived in open adultery, or that she is continuing adulterous intercourse. The evidence established a single act of adultery committed by the defendant in September, 1904, and one committed by the plaintiff in November of the same year. By reason of the mutual guilt a divorce was denied to either party.
In determining this question we must not be misled by the false analogy of ordinary contracts, and the argument that where both parties have violated a contract neither can claim any right thereunder. Though based on contract, as distinguished from religious sacrament, marriage is not a contract in the accurate sense of that term. In Wade v. Kalbfleisch (58 N.Y. 282) Chief Judge CHURCH said: "It cannot be dissolved by the parties when consummated, nor released with or without consideration. The relation is always regulated by government. It is more than a contract. It requires certain acts of the parties to constitute marriage, independent of and beyond the contract. It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community." The learned judge quotes with approval the declaration in Ditson v. Ditson (4 R.I. 87): "In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract which they can make."
Nor are we to be controlled by the decisions in England (which will be referred to hereafter), where both the law and public opinion view in very different lights unchastity in the wife and the same offense in the husband, and where even now under the Divorce Act of 1857, not only is distinction made between adultery by the wife and that by the husband, but a divorce may be granted to a party guilty of adultery. The question is to be determined in the light of the public policy of this State as declared in its statute law, which imposes the obligation of marital fidelity equally on the husband *Page 419 and wife, which for a violation of that obligation grants the innocent party, whether wife or husband, the same right to relief, and where both parties have been guilty, requires them to remain husband and wife. The obligation resting on the husband to support the wife does not spring from contract, but arises from the marital relation and is imposed by law. It is not even within the power of the parties to contract to the contrary. Such was the rule of the common law, and it is expressly enacted in this state by section 21 of the Domestic Relations Law, "Husband and wife cannot contract to alter or dissolve the marriage, or torelieve the husband from his liability to support his wife." (L. 1896, chap. 272.) When, therefore, the law says that man and wife who have each been guilty of adultery shall remain man and wife, it enacts that the marriage obligation shall continue between them in its full integrity. It is conceded that in all other respects, except that of support, the rights and obligations of the parties remain unaffected. On the death of the defendant the plaintiff will be entitled to her dower right in his real estate, and, if he dies intestate, to a share of his personalty. The defendant has a similar right of inheritance in case of the plaintiff's death intestate. If either one should be killed by the wrongful or negligent act of a third party, the survivor will be entitled to sue for damages for the death. In case of intestacy, the survivor will be entitled to take out letters of administration. Neither can adopt a child without the consent of the other. It is unnecessary to extend this enumeration of the respective rights of either party in the person and estate of the other. It is urged, however, in answer to this argument, that these are matters of statutory policy, and that the legislature could abrogate all these rights. This is undoubtedly true, but it is equally a matter of statutory policy that the adulterous husband must retain as his wife an adulterous woman, and as for the suggestion that the legislature could abrogate these rights, were it not for the provision in the State Constitution forbidding divorce except by judicial decree, the legislature might abrogate the marriage itself, for it is not a *Page 420 contract within the protection of the Federal Constitution. (White v. White, 5 Barb. 480.)
The English ecclesiastical cases, which take a contrary view of the obligation of the adulterous husband to support an adulterous wife, are of recent date, long subsequent to the Revolution, and, therefore, not evidence of the ecclesiastical law of that country as it existed at the time of our separation. (People ex rel.Tweed v. Liscomb, 60 N.Y. 559, p. 576.) The earliest of these is Hope v. Hope (1 Swabey Tristram, 94), decided in 1858. There it was held that an adulterous wife cannot obtain a decree for the restoration of conjugal rights against an adulterous husband. The learned judge who decided the case states that the question had never been determined in the courts of that country, and admits that the canon law, which, though not adopted in its entirety, is concededly the foundation of the English ecclesiastical law, was directly contrary to the conclusion which he reached. He further admitted that there were dicta of that eminent ecclesiastical judge, Lord STOWELL, evincing a different view. In Proctor v. Proctor (2 Hagg. Con. [Eng. Eccl.] 292), where a separation was refused by reason of mutual adultery, Lord STOWELL said: "It (the court), therefore, presumes, when it withholds its decree of separation, that the parties return to cohabitation; all matters return to their former course, but with increased vigour; the husband and wife live again on their former footing, and there is no anticipation of separate debts, or of the probability of a spurious offspring. That such is the doctrine of the Canon Law is most certain, the authorities are numerous and precise to that effect." The Hope case proceeded on two decisions of the common-law courts. The first was that ofGovier v. Hancock (6 Term. R. 603; temp. 1790). The action was for board and lodging furnished to defendant's wife. The report thus states the case: "The defendant having committed adultery with a woman of the name of Bazely whom he had brought home, treated his wife with great cruelty, and finally turned her out of doors. Then the wife committed adultery, after *Page 421 which she offered to return home, but her husband would not receive her; and this action was brought for her board and lodging subsequent to that time." It was held that the husband was not liable. In Rex v. Flintan (1 Barn. Adol. 227) the defendant was convicted as a disorderly person in failing to maintain his wife by reason of which she became a charge on the parish. Both husband and wife had committed adultery. The conviction was reversed, the court holding that as the defendant was not civilly liable for the supply of necessaries to his wife, he could not be held a disorderly person for not supplying them. The Irish case of Seaver v. Seaver (2 Swabey Tristram, 665) was decided prior to Hope v. Hope, but the decision is not noticed in the later case. The Seaver case was decided both in the Consistorial Court of Dublin and on appeal exactly the reverse of the Hope case to which it was entirely similar in its facts. The court there said: "The sentence is not merely that the parties shall live together, but its effect in substance is, that they shall fulfill all their matrimonial duties, of which fidelity to the nuptial bed is not the least important. I know that, according to the modern code of morals and feelings, it is hard for the husband to comply with such a sentence. According to this code a husband incurs no disgrace, and need feel no shame for his own adultery, while his honor is ruined totally by the adultery of his wife. The disgrace thus caused by another's guilt is capable of only one possible aggravation, viz., if heforgives her. This code cannot be recognized in a Court Christian; nor will a man, against whom adultery is charged and proved, be permitted to allege any reluctance to associate with an adulteress, because she happens to be his wife."
While the law in England as to judicial separations remains unchanged by the Matrimonial Causes Act of 1857, which first authorized the courts to decree a dissolution of the marriage tie, the practice in suits for absolute divorce is so entirely foreign to the law and policy of this State as to render the decisions under that statute of no value here. There a husband may obtain a divorce from his wife for her *Page 422 adultery. A wife cannot obtain a divorce for the adultery of her husband unless it is accompanied by cruelty, abandonment, or the adultery is incestuous. The adultery of the plaintiff is not a bar to a divorce for the adultery of the other party. Under the statute the courts may, but are not bound, to deny relief for that reason. Alimony seems to be in the discretion of the courts and has been granted to a wife who has been divorced for adultery. A full collection of these cases can be found in the work of Gwynne Hall on Divorce and Matrimonial Causes.
My learned associate, who writes for the majority of the court, says: "Independent of any statutory provision, it might be questioned whether a wife who has been guilty of adultery may successfully insist that her husband shall live with and support her even though the court has refused to dissolve the marriage relation because of his similar fault." From this intimation I dissent toto cœlo. Its effect would be to set up one standard of morality for the woman, another for the man, a distinction which, whatever may be the view taken of it by society, is expressly repudiated by the statute law of this state by which adultery on the part of husband or wife is equally made a crime. I can only repeat the forcible language of the court in theSeaver Case (supra): "Nor will a man, against whom adultery is charged and proved, be permitted to allege any reluctance to associate with an adulteress, because she happens to be his wife." I do not say that the commission of a single act of adultery on the part of the husband gives the wife unlimited license to commit adultery at all times thereafter and still compel her husband to support her, but this is equally applicable to the wife, and a single act of adultery on her part, possibly committed at a time long past, and sincerely repented of, should not enable the husband to cast her off without support, though he may be living a life of continuous and gross profligacy. The circumstances under which an offense is committed, while they may not affect the penalty which the law imposes on its commission, may form a controlling factor in determining the moral delinquency attributable to the act. The effect of the decision about to be made is to *Page 423 put the law of this state on the same basis as that declared by the King's Bench in the Govier Case (supra), that is to say, that the adultery of the wife bars her right to support no matter how flagrant the misconduct of the husband may have been in the same direction. In the case before us the parties seem to have equally sinned. The plaintiff's right to relief, unless barred by her misconduct, was conceded. The burden was, therefore, upon the defendant to show that his wife's misconduct was of such a nature or so far exceeded his own in moral obliquity as to justify him in turning her off. No proof of the kind appears in the record. No finding to that effect has been made or requested. We have here the bare facts that the plaintiff committed an act of adultery and that the defendant also committed an act of adultery. These facts standing alone, I say, do not justify the defendant's refusal to support his wife.
The judgment appealed from should be affirmed, with costs.
GRAY, EDWARD T. BARTLETT, HAIGHT and WERNER, JJ., concur with HISCOCK, J.; CULLEN, Ch. J., reads dissenting opinion; WILLARD BARTLETT, J., not sitting.
Judgment reversed, etc.