Larsen v. Larsen

88 Pa. Super. 98, 1926 Pa. Super. LEXIS 128

• Court: Superior Court of Pennsylvania
• Decided: April 14, 1926
• Docket: Appeal 188
• Status: Published

Opinion

Opinion by

Kelleir, J.,

The libellant based her application for divorce on the ground that respondent “was at the time of their marriage and still is naturally impotent or incapable of procreation and that the said incapacity is incurable.” The testimony produced in support of her charge is confined to proof (1) that the libellant is a normal woman and bore a child prior to her marriage with respondent; 'and (2) that marital relations susstained with respondent for over eight years have not resulted in conception, notwithstanding nothing was done by either party to prevent it.

We need not now decide whether the phrase “naturally impotent or incapable of procreation,” as used in the Act of March 13, 1815, 6 Sm. L. 286, specifies only one or two separate grounds for divorce; or whether the term “incapable of procreation” is equivalent to mere sterility. There is no proof in this case that the respondent is either sterile or incapable of procreation. The incapacity under the act must be general. It is not satisfied by simple proof that marital relations with libellant do not result in conception. It is well recognized that “although sterile with one person of the opposite sex either male pr female may be fertile with others.” Lydston on Impotence and Sterility, p. 102. A normal male and normal female may each he capable of procreating and yet be nnable to have issue by the other.

The learned court below committed no error in dismissing the libel.

The decree is affirmed at 'the costs of the libellant.