Rosado Marzán v. Rivera García

81 P.R. 153

• Court: Supreme Court of Puerto Rico
• Decided: March 30, 1959
• Docket: No. 11576
• Status: Published

Opinions

Mr. Justice Pérez Pimentel

delivered the opinion of the Court.

Manuel Rosado Marzán filed an action of divorce against his'wife Marcelina García, before the Superior Court of Puerto Rico. In an amended complaint he alleged as cause of action that “at the time the defendant married the plaintiff she was pregnant by another man, the plaintiff not having had any sexual relations with the defendant until they were married, and that the defendant gave birth on February 20, 1954, exactly six (6) months and three (3) days after the date of their marriage”; “that this action on the part of the defendant toward the plaintiff, deceiving him in such a way, has caused him serious emotional and spiritual anxiety, since the defendant, whom he believed to be a virgin at the time of marriage, was pregnant at that time.”

Defendant requested the dismissal of this complaint on the ground that it did not state facts sufficient to constitute a cause of action. After said motion was denied, she answered making a general denial of all the facts.

After a trial on the merits, the lower court entered judgment decreeing the divorce between the parties on the ground «of cruel treatment and grave injury on the part of the wife "towards the husband and it declared furthermore, that the ■child born of the marriage on February 21, 1954 is not the :son of the plaintiff Rosado Marzán. In support of said judgment the lower court made only the following findings of fact:

“The evidence has convinced the court that on August 17, 1953 Manuel Rosado Marzán was married to Marcelina Rivera Garcia; that when Marcelina married Manuel she was already pregnant by another man, who is not the plaintiff; that the plaintiff became aware of this situation and thereupon returned Mar-celina to her father and explained to him the reason for such a sudden decision. Defendant gave birth on February 21, 1954. By August 17, 1953, when she was married, she was already pregnant and the father of the child was not precisely Manuel Rosado Marzán, who had returned from Germany on June 24, 1953, after serving in the army.

“The court concludes that the attitude assumed in this case by Marcelina Rivera Garcia involves cruel treatment or grave injury and on such ground judgment will be entered granting the complaint, ordering the defendant to pay costs, plus one hundred dollars ($100) to plaintiff for attorney’s fees.”

On appeal defendant-appellant charges the trial court with several errors. However, it will be sufficient to consider the most important one, namely: whether the facts alleged and proved constitute the cruel treatment or grave injury prescribed by our Civil Code as ground for divorce.

The supervisory power over the institution of marriage, its constitution, regulation, and dissolution are matters within the province of the Legislature, since they concern political and public interest. Consequently, divorce, which is one of the forms of dissolving marriage, may only be granted in the manner and upon the grounds prescribed by the statute.¹

Our Civil Code, in its §96 (31 L.P.R.A. § 321), enumerates ten grounds for divorce. There are no others. The antenuptial pregnancy of the wife by another man at the time of marriage and unknown to the husband, does not appear expressly in our Code as one of the grounds for divorce. Unless this fact is considered as sufficient to constitute the “cruel treatment or grave injury,” indicated by the said § 96 of the Civil Code in its paragraph 4 as ground for divorce, the action of divorce raised by the plaintiff-appellee in this case does not lie.

On multiple occasions we have examined the conduct of one of the spouses towards the other to determine, if for the purposes of divorce, such conduct constitutes cruel treatment or grave injury.² However, never before have we passed on the question now at issue. Neither have we found any decision in American jurisdictions supporting concealed pregnancy of the wife by another man at the time of marriage and furthermore, unknown to the husband, as the cruel treatment and grave injury prescribed by the statute as ground for divorce. Discussing what constitutes “mental cruelty,” Nelson, in his work Divorce and Annulment, Vol. 1 § 6.06 at 222, says that the acts which may constitute mental cruelty, or be asserted to do so in themselves or in connection with others, present an almost infinite variety and include such matters as concealment of antenuptial pregnancy. In support of this declaration the said author cites the annotations in 13 A.L.R. 1435; but a brief examination of said .annotation shows that the case law cited therein has not ■decided that antenuptial pregnancy of wife by another man at the time of marriage and unknown to husband, constitutes •cruel treatment or grave injury. What happens is that the statutes of some states prescribe that ground as action of divorce. In other states the conduct of the wife upon concealing her pregnancy by another man at the time of marriage, is considered as fraud which will authorize the husband to request an annulment of the marriage.³ It is significant, however, that in those states where antenuptial pregnancy is ground for divorce (see footnote 3), cruel treatment is listed as an additional separate and independent ground for divorce.⁴

In Central America, the codes of the republics of Honduras, Nicaragua, and El Salvador, include as ground for divorce the pregnancy of a woman by another man prior to the marriage when this condition is unknown to the husband at the time of marriage. However, said codes also list ill-treatment and grave injuries as another ground for divorce. Ireland & Galindez, Divorce in the Americas 186, 210, and 245 (1947).

In view of all the foregoing it may be concluded that the antenuptial pregnancy of the wife has not been considered as cruel treatment or grave injury towards the deceived husband and that divorce has been granted only on that ground, in those jurisdictions where the statute expressly gives it as ground for divorce.⁵ In the absence of a statute to the contrary, divorce means dissolution of the bonds of matrimony for some cause arising after marriage based, naturally, upon the theory of a valid marriage.⁶ Certainly, it can not be said that the deceit of the wife concealing from her husband her pregnancy by another man at the time of the marriage is a fact that arises after the marriage. We must bear in mind that precisely the plaintiff in this case bases his action of divorce on the concealment .of the physical condition of defendant. Plaintiff discovered the fact after the marriage, but the act of cruelty, if any, does not consist in the wife’s having continued to conceal her physical condition after the marriage. If we were to characterize defendant’s attitude as cruel, we would have to refer to her antenuptial attitude to the concealment of pregnancy at the time of and prior to the marriage which, according to plaintiff, has caused him serious emotional and spiritual disturbance; but the acts of cruelty or grave injury before marriage are not ground for divorce in Puerto Rico.⁷ We decide, consequently, that the action of divorce does not lie in the case at bar.⁸

The judgment on review will be reversed and .another entered instead dismissing the complaint, with costs.

Mr. Chief Justice Negrón Fernández and Mr. Justice Saldaña dissented.

1 Pérez v. León, 52 P.R.R. 497; 17 Am. Jur. $ 7 at 150; 27 C.J.S. § 8 at 527; Keezer, Marriage and Divorce § 4 at 10; Schouler, Divorce Manual ⅜ § 12 and 13 at 14 et seq.; Kasal v. Kasal, 35 N.W.2d 745, 746, and cases cited in footnote 1; Gerber v. Gerber, 64 N.W.2d 779, 781; Moody v. Moody, 288 P.2d 229, 230; Fix v. Fix, 204 P.2d 1066.

2 See Morales v. Vélez, 75 PR.R. 901; Bosch v. Ruiz, 68 P.R.R. 873; Marques v. Rivera, 68 P.R.R. 666; Gómez v. Trujillo, 59 P.R.R. 470; Arce v. Lebis, 50 P.R.R. 857; Munich v. Quero, 38 P.R.R. 83; Forteza v. Enrich, 18 P.R.R. 28; Morales v. Rivera, 8 P.R.R. 442; Cruz v. Domínguez, 8 P.R.R. 551.

3 Antenuptial pregnancy of the wife by another man at the time of marriage and unknown to the husband is ground for divorce in the states of Alabama, Arizona, Georgia, Iowa, Kansas, Kentucky, Mississippi, Missouri, New Mexico, North Carolina, Oklahoma, Tennessee, Virginia, and Wyoming. See Vernier, 2 American Family Laws 66-71; Ploscowe, The Truth About Divorce 264-294; Annot., 13 A.L.R. 1435; Keezer, Marriage and Divorce $ 491 at 528 (3d ed.). In other states antenuptial pregnancy is ground for annulment and not for divorce. For a full study on this question, see 2 Bishop, Marriage, Divorce and Separation 208-219. Law reviews that deal with the question of pregnancy as ground for divorce •or annulment are: Kingley, Fraud as a Ground for Annulment of a Marriage, 18 So. Cal. Law Rev. 215; Recent Cases, 91 U. of Pa. Law Rev. 473; Robert E. Lull, Annulment of Marriage for Fraud, 32 Cornell L. Q. 424; Walter L. Miller, Annnulment of Marriage for Fraud: Ante-nuptial Pregnancy, 6 Cornell L. Q. 328; Recent Decisions, 15 Va. Law Rev. 387.

4 This is so except in the states of North Carolina and Virginia, where cruel treatment is ground for separation but not for absolute divorce. 2A The General Statutes of North Carolina § 20 at 622 (1950) ; 4 Code •of Virginia ⅜§ 20-25 at 410 (1,950).

5 “17 Am. Jur., Divorce & Separation (1957) § § 144 et seq. at 352; Annot. 15, A.L.R. 2d 694.

6 Rambo v. Rambo, 16 So. 2d 4; García v. García, 232 S.W. 2d 782, 783 (1950); Mazzei v. Cantales, 112 A.2d 205, 208 (1955) ; In re Crump’s State, 166 P.2d 684, 688 (1946); Goff v. Goff, 125 P.2d 848, 852 (1942).

7 Louisiana recognizes only two ways, other than by the death of one of the parties, by which the dissolution of marriage may take place, to wit, by divorce or by annulment. The latter two grounds of dissolution supplement each other, for while a divorce can obviously be granted for causes which occur only after the marriage, annulment can be decreed only for a cause which existed prior to the marriage or contemporaneously with it. 24 Tulane Law Rev. 217; Vernier, supra, vol. 1, § 50 at 239.

8 However, by the manner the controversy was raised, by virtue of the allegations and the evidence introduced, we have not passed to consider whether or not plaintiff-appellee has a right of action for the annulment of the marriage.