The plaintiff seeks a judgment of separation from her husband and reasonable *Page 89 provision for her support. Abandonment and failure to provide for her support are alleged as the basis of her prayer for relief. It is undisputed and the trial judge has found that the defendant has never supported the plaintiff, yet all relief has been denied to her and judgment dismissing the complaint on the merits has been granted and affirmed. Since under the provisions of subdivision 4 of section 1161 of the Civil Practice Act a wife may maintain an action for separation because of "the neglect or refusal of the defendant to provide for her," the judgment of dismissal on the merits seems to establish that in this case the defendant was justified in his neglect or refusal to support the plaintiff because of act or omission on her part. (Civ. Prac. Act, § 1163.)
Stipulation by the parties conclusively establishes in general outline those relations of the parties which fix their mutual rights and obligations and details are to some extent supplied by the plaintiff's uncontradicted testimony. The courts below have drawn their conclusions of law from undisputed facts. These facts create an unusual problem.
On September 3, 1921, the parties intermarried. The ceremony was performed by the deputy city clerk at the Borough Hall of the borough of The Bronx, New York city. Both parties were Catholics and prior to the civil ceremony they agreed that a religious service should be performed in a Catholic church after Christmas and that, as testified by the plaintiff: "I shall live with my people, he should live with his people until we go thru the religious ceremony." The understanding that the marriage should not be consummated until the religious ceremony was performed is undisputed. In January, 1922, the plaintiff asked the defendant to go through the promised religious ceremony. The defendant refused. It does not appear that the defendant ever asked the plaintiff to cohabit with him without a prior religious ceremony; in fact, the plaintiff testified that when the *Page 90 defendant refused to take part in a church ceremony, he said, "he don't care to live with me," and it appears from the statement of fact made by the defendant's counsel at the opening of the trial that the defendant claims that his refusal to join in a religious marriage ceremony was due to resentment because the plaintiff took the part of her brothers in a quarrel they had with the defendant. The parties as a result have never lived together as man and wife and the marriage has not been consummated. The plaintiff asserts that she is not willing to have the usual marital intercourse with her husband until the promise to have the marriage blessed by the church, to which both parties belong, has been carried out. Solely because of this unwillingness the courts have refused to compel the husband to furnish support to her.
It can hardly be doubted that if we consider the problem presented solely as a question of equity and justice to the individual parties to the action and entirely apart from the social consequences of the positions they are assuming, the result of the decision is unfortunate. The parties have entered into a valid, enforcible marriage and by reason of that marriage the obligation to support the wife is imposed by law upon the husband so long as the wife does not fail or refuse to fulfill the obligations imposed by law upon her by reason of her wifely status. The husband definitely refuses to carry out that obligation and the courts have decided that his refusal is justified by his wife's demand that the civil marriage be followed by religious ceremony before the marriage is consummated by cohabitation. If so the justification must rest solely upon grounds of public policy; upon the view that decision sustaining the position of the wife would be in conflict with the principles that the legal obligations of the marriage contract may not be varied by private agreement and that these obligations are invariably binding despite difference of ethical or religious standards among *Page 91 individuals. Justification for the husband's attitude cannot be found according to any possible standards of honesty or good faith. Concededly the wife entered into the marriage only upon the husband's promise that their union should receive the blessing of their church before the marriage should be consummated by cohabitation. When the marriage was contracted both parties contemplated that cohabitation without such blessing would be sinful. Having induced the plaintiff to enter into the marriage contract in reliance on his promise the defendant repudiates his promise. She is tied with bonds that may not be broken unless he is guilty of adultery. Of that she may not complain, for she voluntarily assumed those bonds; but she assumed those bonds intending to be a wife in fact and not in name only as soon as the religious ceremony was performed. By her husband's promise to join in such ceremony and his subsequent repudiation of his promise, he has placed her in the hideous position of being legally bound to a man with whom she may not live as wife without being guilty of what in her own conscience and in the eyes of the church of which both parties are members would constitute a sin. The defendant does not even ask the plaintiff to live with him without religious ceremony. Indeed the evidence would perhaps fairly permit the inference that he too would regard cohabitation as a sin which he would be unwilling to commit. He seeks to evade his obligation to support his wife; he finds the way for such evasion in the unwillingness of his wife to cohabit with him, although such unwillingness is based upon a ground which he could remove, and which in good conscience he is bound to remove even though his promise to do so is not enforcible in law. By repudiating his moral obligation to place the plaintiff in a position where in good conscience and according to the tenets of her religion she could become his wife in fact, he is permitted to escape his obligation to support her. Does any rule of public policy dictate such result? *Page 92
Though upon this question my conclusion is different from that arrived at by the majority of the court, yet it rests upon substantially the same premises. I do not understand that the majority of the court have intended at this time to decide that in effect refusal by one party to a marriage to submit to ordinary marital physical relations constitutes matrimonial desertion or abandonment. They have decided, and I think intended to decide, only that a refusal by this plaintiff in the present case to submit to ordinary marital physical relations, resulting in a consummation of marriage, without some excuse which a courtof law may recognize would constitute "misconduct" within the meaning of section 1163 of the Civil Practice Act. I think that view is clearly correct. Even if we should hold hereafter when the question is directly presented that a willful refusal to cohabit would not, after the marriage is consummated, constitute such misconduct, yet it seems clear that obligation at least to afford opportunity for consummation of the marriage is an essential part of the marriage contract (See Civ. Prac. Act, § 1141) and that repudiation of this obligation by the wife would justify the husband's failure to support her. The question, however, still remains whether here there has been either repudiation of this obligation or refusal to carry it out without excuse cognizable by the courts.
At the outset, at the risk of seeming to repeat the obvious, I must point out that under section 1161 of the Civil Practice Act an action for separation may be brought for the neglect or refusal of the defendant to provide for his wife. Here the defendant never provided in any way for his wife. Section 1163 of the Civil Practice Act provides that "misconduct of the plaintiff" constitutes a defense to this action. Has there been such misconduct? If not I can see no defense. I use the word "misconduct" in a very broad sense. Perhaps there may be times when the conduct of the wife would not *Page 93 ordinarily be described as misconduct, yet would furnish what might reasonably be regarded as excuse for failure by the husband to support. Whether under such circumstances we should say that the husband has been guilty of no breach of duty under section 1161 of the Civil Practice Act or that he has established a defense under section 1163 is unimportant. I use the term "misconduct" in a sense sufficiently broad to cover such cases; yet in all cases it must be remembered that never has there been any doubt that a husband is always bound to support his wife unless by his wife's act or omission he has been freed temporarily or permanently from his obligation. I have pointed out that the plaintiff's conduct which it is claimed deprives her of the right to support is the result of defendant's wrong; that there is not even proof of any refusal by the plaintiff to carry out her marital obligation, for no request to do so has been made to her by the defendant; that in effect the defendant is permitted by his own wrong to evade his own obligation. Upon only one theory may that result be sustained, if at all viz., that judgment in favor of the wife would be a decision that because of private agreement of the parties, or because of the tenets of their particular religion the legal obligations of their civil marriage contract need not be fully carried out.
I accept without reservation or doubt the rule of law that the obligations of the marriage contract are fixed and may not be modified by private agreement or the religious tenets of the parties. I agree that if a reversal of the judgment of the courts below would in the slightest degree impair the legal effect of a civil marriage or permit religious ceremony to alter or increase the legal obligation of the civil marriage, then the judgment of the courts below must be affirmed. Our public policy is upon these points fixed and must be upheld by the courts.
In the present case the marriage performed in the Borough Hall between the parties constituted a valid *Page 94 marriage. From the instant it was performed all the obligations inherent in a contract of marriage were as matter of law assumed by the parties. They could have chosen to enter into such contract in the manner directed by the rules or canons of their church; they may not be heard to assert that the obligations of marriage were to attach only when subsequent ceremony should be performed by priest according to the rites of their church. They might lawfully stipulate for a subsequent blessing upon their union to satisfy their own conscience or sense of fitness; the State will recognize no force in a stipulation that until the marriage received the sanction of the church its obligations are unenforcible. The defendant as the plaintiff's lawful husband is liable for the support of the plaintiff; the plaintiff as the defendant's lawful wife may not reject the fundamental obligations inherent in the marriage contract, and if she does reject them the defendant is justified in refusing support. We must determine in this case whether plaintiff's attitude constitutes such rejection.
An agreement not to consummate the marriage might well be considered as an agreement to "alter" the marriage forbidden both by our public policy and by the spirit if not the letter of section 51 of the Domestic Relations Law, but no agreement that the marriage shall not be consummated has been asserted here; no obligation to consummate the marriage is wholly repudiated or denied by the plaintiff. She recognized that obligation but asserts a right to postpone until such time as the defendant will comply with his promise to perform these preliminary rites which will change sexual intercourse from an act which according to her view is morally illicit, to one which is sanctioned by the guardians of her conscience. Even in those jurisdictions where refusal of marital intercourse is regarded ordinarily as equivalent to desertion, the courts are impelled at times to consider whether reasonable, moral or psychological factors have determined *Page 95 such refusal. (See Parmly v. Parmly, 90 N.J. Eq. 490; also note in Cornell Law Quarterly, April, 1925, page 374.) Marriage should constitute a bond, but rigid rules of law which decree that religious, moral and other psychological factors which determine human conduct must be disregarded in the measurement of the performance of marital obligation will tend to make the marriage contract not a bond but a chain.
Formulation of exact rule which may be applied without difficulty to each case and which will define what constitutes sufficient justification, under varying circumstances, for refusal or neglect of a husband to provide support for his wife is impossible, yet at least it may be said that under varying circumstances the principle which always must guide the courts is that the permanence and immutability of the marriage relation must be sustained and vindicated and honest observance of its spirit must be required from both parties. Here the defendant does not even show in attempted justification that the plaintiff has ever refused to do anything he asked of her. So far as this record shows he himself may still share plaintiff's unwillingness to cohabit or even to live in the same apartment without a religious ceremony — yet for his own purpose he refuses to go through such ceremony. The plaintiff does not refuse to perform her marital obligation. She insists only upon her husband first carrying out his solemn promise to her. Is her refusal to submit her body to him until that time a wrong to him in his marriage relation when that relation was entered with understanding by both that such submission would be a sin which he would not require of her? Is her attitude unwifely when his refusal to carry out his promise is a willful wrong to her? May he be released of his obligation of support because, as the evidence shows, he wishes to make it impossible for her to live with him or to become his wife in fact without a sense of sin which he has agreed not to put upon her? The *Page 96 obligations of the marriage contract are fixed by law, and disregard of obligations fixed by law may not be excused because performance is contrary to the tenets of a particular religion; yet certainly our law is not hostile to religion in family life and should not so construe obligation of the marriage contract as to compel performance of such obligation in a manner contrary to religious scruples which both parties recognized when they entered into the marriage. A determination that the husband in this case need not support his wife unless she is willing to live with him even without a religious ceremony does not result in the vindication of the validity of civil marriage or in the supremacy of its legal obligations; it results in the husband's successful evasion of the obligations of his marriage by his own wrong. Certainly where both parties are agreed that without a religious ceremony cohabitation is improper, the husband who refuses to have the religious ceremony performed in accordance with his previous promise, with purpose of evading marital obligation, should not be in a position to urge that the wife's unwillingness to cohabit without such ceremony constitutes such failure to perform her marital duties as justifies his refusal to support her. The defendant has induced the plaintiff to enter into the civil marriage relying upon his promise to join thereafter in a religious ceremony. Assuming that this promise is void the defendant still is bound in good faith as plaintiff's husband to refrain from insisting upon the performance of a marital obligation of intercourse until the steps have been taken which both parties contemplated at the time of the marriage to relieve such performance from what they regarded as sin. Even though the defendant should offer to cohabit without the promised religious ceremony, he could not change the fact that such cohabitation would, in plaintiff's conscience, constitute a sin, and not only is it within his power to satisfy his wife's conscience but in good faith and because of his own acts he is bound to *Page 97 do so. A sense of sin is poor foundation for permanent marriage relation and a husband who demands consummation of marriage at the price of his wife's sense of virtue, and at the same time invites refusal of his demand by willful failure to carry out conditions which induced the wife to enter into the marriage, should not be permitted to urge that refusal as justification for his own failure to support his wife.
The judgment should be reversed and a new trial ordered, with costs to appellant.
POUND, McLAUGHLIN and ANDREWS, JJ., concur with HISCOCK, Ch., J.; CRANE and LEHMAN, JJ., dissent in opinion; CARDOZO, J., absent.
Judgment affirmed.