W v. W

HCMC000055/1968

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 55 OF 1968

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ACTION NO. 116 OF 1968

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Coram: Briggs, J.

Date of Judgment: 31 January 1969

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JUDGMENT

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1. In this case the petitioner, the wife, asks for a decree of nullity on the ground that her marriage has never been consummated by reason of the impotence of her husband, the respondent. By his answer the respondent denies that the marriage has not been consummated and denies his incapacity.

2. The petition was filed on 20th May 1968, the answer on 18th July 1968. On 8th January 1969 the answer was amended to include the plea that if the marriage had not been consummated (which was denied ) it was not because of the incapacity of the respondent. In addition though this is not specifically pleaded, the respondnet alleges a lack of sincerity on the part of the petitioner in presenting the petition.

3. There is also before me a cross-petition brought by the husband against the wife for the restitution of conjugal rights, which has been consolidated with the petition for a decree of nullity. It is agreed that the successful party in the petition for a decree of nullity will also be the successful party in the petition for the restitution of conjugal rights.

4. The petitioner and respondent were married according to the rites of the Roman Catholic Church in Los Angeles, California on 31st December 1966. At that time the wife was 22 and the husband three years older.

5. The wife is the eldest child of well-to-do parents domiciled in Hong Kong. She first went abroad to study in 1958, when she attended a school in Los Angeles until she was 18. Later, after a year at a school in Switzerland, she attended a ladies' college in New York, returning to Hong Kong in 1964 for a holiday. She became engaged to be married [not to the respondent] while she was in Hong Kong and returned for further studies at the ladies' college in New York. She again returned to Hong Kong for a holiday in 1965. The engagement was broken off and she left for the United States, via Europe, in November 1965. She returned to Los Angeles and entered a college attached to the school at which she has previously studied, intending to read for a degree. She wished to graduate in French, Psychology being a minor subject.

6. The respondent is also domiciled in Hong Kong. He first left Hong Kong for study in America in 1958 returning to Hong Kong in 1961, when he was employed by a well known Air Line. He returned to America in 1964 for further studies. In 1966 he was employed in Los Angeles by a firm of electrical engineers as an assistant engineer.

7. I mention these facts because it is necessary to bear in mind that both parties are of full age, are educated, and are travelled. Both are Roman Catholics: both have parents living in Hong Kong.

8. The parties met in Los Angeles in 1966. There is a conflict of evidence on what date they first met. But they were going out together from mid August 1966 onward.

9. The respondent's evidence is that they fell in love with each other and wished to marry each other: that, in mid October, the petitioner informed her parents, who were violently opposed to the match: that they considered themselves engaged as from 9th November: that disregarding the opposition to the match of the parents of the petitioner they married on the last day of the year 1966. He said that at that time the petitioner was living in a dormitory attached to the college where she was studying. Occasionally she would spend the night in his flat but that though they embraced and made love, they never had sexual intercourse before marriage. Originally he said they intended to marry after the graduation of the petitioner which was due to occur in the summer of 1967: it had been agreed that her mother would come out for her graduation, she would then be introduced to the respondent and the marriage would take place with her approval. However, he said, they became aware that the attitude of the parents of the petitioner was intransigeant, and they were afraid that they would never consent to their marriage and might even try to separate them, so they decided to have an earlier wedding than originally planned namely on December 31st 1966, without the consent of the parents, presenting them with a fait accompli.

10. The petitioner has told a very different story. She said that between August and November, 1966 the respondent pestered her and by a combination of charm and persistence secured almost all her attention.

11. There was a Thanksgiving Day Holiday at the college from 23rd November - 26th November. The petitioner said the respondent invited her to dinner at his flat on 23rd November. She went and to her surprise found no other guests there. The respondent locked the door and tried to rape her. During the struggle he partially undressed her and she scratched his face. Later she said he calmed down and said that he intended to marry her. If she agreed he would leave her alone. In fear and against her will and instincts she agreed to marry him. Thereupon he cooked dinner for the two of them and she stayed the night in his flat. They occupied separate beds and there was no sexual intercourse.

12. The petitioner said she was kept as if a prisoner in the flat of the respondent for the duration of the holiday when she returned to her dormitory. She said he never let her out of his sight for the whole period. She was his prisoner. However on Thanksgiving Day itself she attended a party held at a friend's house accompanied by the respondent to whose flat she returned afterwards.

13. She continued to see the respondent and to go out with him after this incident. Her parents were anxious that she spend Christmas in Hong Kong with them. And she had a return air ticket to Hong Kong in her possession at that time. She said she gave this to the respondent in order that he might book a seat for her and that he retained it. The reason, she told her own counsel, why she did not return to Hong Kong was because she had no ticket, she had promised to marry the respondent under duress and she had resigned herself to marriage with the respondent.

14. On 31st December the parties were married. Present at the marriage was a doctor Wiseman and His wife. This gentleman had been the guardian of the petitioner before she attained her majority. Originally he was to have given her away. But at the last moment he declined because he was a friend of her parents. I infer from this that he at least knew that the couple was marrying against her parents' wishes. Photographs of the wedding and reception held afterwards have been exhibited and show that there was nothing clandestine about the marriage. And the petitioner if I may say so, made a radiant bride.

15. I totally reject the petitioner's account of the premarital relationship of the parties. I think that the husband told me the truth and I accept his version. It was a simple case of two young people falling in love and getting married against the wishes of the parents of the bride. In particular, I disbelieve the story of the alleged rape. The petitioner was in the habit of telephoning her parents in Hong Kong from Los Angeles. If what she said had occurred she could have complained to the nuns at the dormitory where she lived, to the school authorities, to her spiritual adviser Sister Matthew, to Doctor Wiseman her ex-guardian, to her friends living near by, or even to the police. In addition she could have phoned her parents. So far from complaining of the conduct of the respondent to her friends and ex-guardian, she invited them to her wedding.

16. This is not the only part of the evidence in this case where the petitioner has paid but little regard to the truth. It is enough to say that except when I have indicated to the contrary I will only accept her version of facts when it is corroborated by the testimony of an independent witness.

17. Putting aside the sexual aspect of the marriage I also accept the evidence of the respondent that the marriage was a happy one while the parties were together in Los Angeles.

18. After a brief honeymoon the couple took up residence in a flat in Los Angeles. The parents of the petitioner were informed of the marriage and were both vexed and very distressed in consequence. The respondent wrote to them trying to effect a reconciliation. Certain letters received by the petitioner from her parents were put in evidence. These are not evidence of the facts that they contain but the parties have told me enough for me to state that the parents of the petitioner, particularly her father, were deeply hurt, and did not want to have anything to do with the respondent. Indeed, it would seem that they both made themselves quite ill over the affair.

19. However, by about late March, the petitioner's mother, trying to smooth matters over, kindly arranged for them to fly to Hong Kong for a holiday, which they did in April 1967.

20. There is a conflict of evidence between the petitioner and the respondent as to the way in which the respondent was first treated by her parents when they were in Hong Kong. I cannot believe the petitioner's evidence that the respondent was accepted by her parents after he had met them. The opposite was the case. Upon their arrival in Hong Kong the couple were met with instructions that the petitioner was to go to her parent's house alone: the respondent was not to accompany her.

21. The respondent was admitted to her parents-in-law's house the day after his arrival, but at no time while he was in Hong Kong did he and his wife spend a night together.

22. When he presented himself at the house of his father-in-law on the day after his arrival he was insulted by his father-in-law and there was an emotional and distressing scene. The petitioner's parents refused to see the parents of the respondent. He had to fill in a long questionaire and submit himself to a medical examination. And in addition, the petitioner's father told him to follow six conditions upon his return to Los Angeles, which can only be described as humiliating to a young newly-married husband. In effect these were designed to make it appear that the couple were not married, and to guard against the possibility of conception. It is suggested that the reason was that the petitioner should graduate, after which, her parents would announce the wedding and give the traditional wedding feast. I do not know if this is correct. The parents of the petitioner did not give evidence.

23. Counsel for the petitioner suggested that the father's behaviour was natural in that he wanted a more suitable match for his daughter - a marriage with a professional man at least; and that he was faced with the fact that the petitioner, knowing this, had secretly married a man of whom she knew he did not approve.

24. This may be true but this is Hong Kong, the date was 1967, the parties are educated and of full age, their religion Christian and they had freely chosen each other. The point is that this attitude of the parents - at first total opposition, and later only a grudging forgiveness - must have weighed very heavily on the petitioner and respondent and the resultant tension may have had an effect on their sexual difficulties. Be that as it may the respondent agreed to everything that his parents-in-law instructed or asked him to do, so anxious was he for a reconciliation between them and his wife.

25. Incidentally it was never suggested that the petitioner told her parents at that time that she had married the respondent under duress; nor that the marriage had not been consummated.

26. Later the position became eased, particularly so far as the mother of the petitioner was concerned, and she gave the respondent a coat and they were given a dinner service. The parties returned to Los Angeles. The respondent took the view that the first hurdle had been surmounted and that if he obeyed the instruction of his wife's father there would eventually be a complete reconciliation. Although the father of the petitioner did not write to them after their return to Los Angeles, they wrote to him.

27. The petitioner graduated on 10th June. Her mother and younger brother arrived in Los Angeles for the occasion shortly before. She was given a round the world air ticket as a graduation present and left for Canada with her mother and brother on 13th June 1967. Later they flew to Switzerland.

28. She wrote to the respondent every day, and sometimes twice a day for the whole of the time she was in Canada. And some of the letters and postcards which have been exhibited betray her anxieties that her parents were trying to break up the marriage. However she would have none of that, the letters are couched in most affectionate language and in the witness box she said that this was genuine, she had become very fond of her husband and longed to be back with him in Los Angeles.

29. The last of these letters is in two parts and is dated the 26th and 28th of June 1967 and was posted in the first week in July from Geneva. The post mark is indistinct. It is an affectionate letter and it is the last time that she communicated with her husband directly.

30. The father of the petitioner arrived in Geneva on 3rd July leaving again for Hong Kong on 9th July and during his stay the petitioner had an interview with him and with her mother. On 8th July she wrote a letter to one Sister Matthew, described as her spiritual adviser, detailing what her father had told her. There are allegations that the respondent was suffering from syphilis and that had passed it on to her, that he had lied about his degree, and that he had been previously married and was still married. It was alleged that the "wife" herself had spoken to the petitioner's father.

31. Now the petitioner knew that the respondent had told her parents that he had a B.S. E.E. and that this was untrue. I do not think it matters for the purpose of this case whether the petitioner connived at this deception of her father or not. Apart from that there is not a word of truth in these allegations. The respondent was not syphilitic and the petitioner had not contracted this disease. In cross-examination the respondent was not asked any direct question about the possibility of him being syphilitic or of his having previously been married. I must also remark the apathetic way in which the petitioner answered questions put to her about these allegations. It was as if she did not believe them to be true.

32. A letter dated 29th June 1967 written by the petitioner to her father was produced as an exhibit. The petitioner said that she wrote this to her father who was then in Hong Kong while she was in Geneva and that this was the reason he came to Geneva. I will say at once that I do not believe this. I do not accept that it was written on June 29th 1967. It contains allegations that the respondent tried to rape her, had lied to her about his degree, and had forced her into marriage against her will. But there is no mention of the incapacity of the respondent.

33. As I have noted above she posted at least one love letter to the respondent after 29th June. I am firmly of the conviction that the letter of 29th June was written at a later date probably for the purposes of court proceedings and perhaps on some other person's advice.

34. The petitioner told the court that while she was in Canada she had been considering her position. The marriage had not been consummated due to the incapacity of the respondent: she wanted children and realised that with the respondent this would not be possible. So she decided to end the marriage. Her decision was come to upon her leaving Canada.

35. She also said that it was in Geneva at this time that she told her parents that the marriage had not been consummated owing to the incapacity of the respondent. There is no mention of this in the letter to Sister Matthew of the 8th of July but the petitioner explained that she did not know that a marriage could be annulled on such a ground until after her return to Hong Kong in late July. She knew about divorce but not about nullity, she said. And she does mention non-consummation in a later letter to Sister Matthew dated 9th September.

36. What she did not do, which is surprising, was to write to the respondent stating what her father had told her so that he could defend himself.

37. However he learned of the situation somehow and immediately wrote to his wife protesting his innocence.

38. Various attempts were made by the respondent to effect a reconciliation both by letter and by the use of a go-between. But all failed.

39. And on 22nd January 1968 the petitioner swore a complaint for annulment of her marriage in the court of the State of California. She was in Taiwan at the time reading for a master's degree and the complaint was sworn before a Vice Consul of the United States.

40. In the witness box the petitioner said she signed this without reading it. I do not believe this but she agrees that this complaint was prepared on her instructions.

41. This complaint was later withdrawn and the present proceedings commenced.

42. The petitioner says that the marriage has never been consummated owing to the impotence of the respondent and she described what occurred on the wedding night and on subsequent occasions when sexual intercourse was attempted. I do not intend to go into details: it is enough to say that her evidence is that he has been unable to have full connexion with her.

43. This is denied by the respondent. His whole case is that he is not impotent and that he has had regular and complete sexual intercourse with his wife frequently for the whole duration of the time they were together.

44. Both parties have been examined by several medical men who were called as witnesses.

45. The medical evidence so far as the respondent is concerned is that his genital organs are those of a normal man. He produced a specimen of semen during one examination. None of the doctors who examined him could find any reason why he could not consummate the marriage.

46. On 3rd January 1968 the petitioner was examined by a specialist in gynaecology and obstetrics, Dr. Chow. He found that she was virgo intacta. There was a second examination by another doctor, Doctor Wylie, on the following day. He also reported that the petitioner was virgo intacta. I do not doubt that these examinations were made with the Los Angeles petition for nullity in mind. Each witness said that the state of her hymen was incompatible with there having been penetration and that it was impossible that she could have had regular sexual intercourse as deposed by the respondent.

47. These two doctors are eminent in their profession and I am sure that I can accept their findings. They are independent witnesses. My only criticism is this: having examined the petitioner they each made a brief report dating it with the date on which the examination was made. Something like 2 months later they each made a second and much fuller report dating it not with the date on which that report was made, but with the date on which the examination was made. However each of the witnesses said that his second report was made from notes taken at the time of the examination. I accept this as being the truth.

48. When she was in the witness box the petitioner was asked whether she had had an operation after her return to Hong Kong in late July 1967. She answered no. The suggestion put forward by the respondent was that the petitioner had had an operation to graft a new hymen, or that her hymen had been sutured so that it would appear that she was a virgin. It was suggested that the petitioner had gone to Taiwan or to Japan from Taiwan in order to have such an operation done.

49. I will say at once that there is no evidence whatsoever that this is so. Doctor Chow made a most detailed examination of the genitalia of the petitioner. He told me he was familiar with the operation of grafting a new hymen and of suturing a torn hymen and he said that he saw no sign of either operation when he examined the petitioner. He also said that either operation would be readily noticeable to a gynaecologist making an examination. And particularly so in his own case for he had himself sutured hymens in other cases. Doctor Yenson Chu who was called by the respondent also agreed that if a hymen were repaired there would be signs of scarring.

50. Dr. Wylie said he did not know of the operation of grafting a hymen.

51. I have the impression that the allegation that there had been a grafting or a suturing was a last minute defence. The petitioner herself was not properly cross-examined on this point. Nor were her medical witnesses. It was necessary to recall them after the matter had been raised during the case for the respondent.

52. The evidence of Dr. Wylie was attacked by counsel for the respondent. He said that after he had made his report the father of the petitioner had a word with him about it. But there is no suggestion that he altered his report as a result or that he was influenced by this at all. Nor do I find it at all strange that the father of the person who was being examined, himself a doctor, should discuss the report after it had been made, with the doctor who performed the examination. I accept the evidence of Dr. Wylie and regret that it was thought necessary to make the attack upon him.

53. For the purposes of these proceedings two doctors, Dr. Rance and Dr. Nichols, also experienced in gynaecology and obstetrics, were appointed by the court to examine both parties. I have already dealt with their reports so far as the respondent is concerned. They examined the petitioner on or about 6th August, namely, some seven months after the examination made by Doctor Chow and Doctor Wylie. The examination was not very successful since the petitioner was very nervous if not hysterical. Dr. Rance said that his examination was inconclusive, that she may or may not have had sexual intercourse but that he was certain that she had not had regular sexual intercourse. He also said that he saw nothing which suggested that she was not a virgin. Dr. Nichols said that his examination showed that there had not been a complete penetration but that she certainly had not experienced regular sexual intercourse.

54. Counsel for the respondent made much of the evidence of Dr. Yenson Chu who commented on the reports of the doctors who had examined the petitioner. He did not examined her himself. She refused to be so examined. I can well understand such a refusal, she having already been examined on no less than 4 occasions. Dr. Yenson Chu's evidence was not therefore based on personal observation. It suffers from that defect but when read alongside the evidence of the other doctors it does not vary from them very much. All his criticism of the reports of the other doctors being carefully qualified.

55. I said earlier in this judgment that I would not accept the evidence of the petitioner unless it was corroborated by the evidence of an independent witness. Her evidence is that the respondent has never achieved a complete act of sexual intercourse. I regard Doctor Chow and Doctor Wylie to be independent witnesses fully corroborative of the evidence of the petitioner. The evidence of the two doctors appointed by the court is also material. It is evidence of the state of the petitioner at a later date in time but it does not in any way contradict or weaken the evidence of Doctor Chow and Doctor Wylie. And if it is true it contradicts the evidence of the respondent. As to the evidence of the respondent on this, the central issue in this case, I find myself unable to accept it. I do not believe that there has been a case of a single complete act of sexual intercourse.

56. I find therefore that this marriage has not been consummated.

57. In her evidence the petitioner never suggested that she and the respondent had discussed his incapacity, nor that they had sought advice from any source. She did not even mention it to her parents until early in July 1967 in Geneva, and to her spiritual adviser until 9th September 1967.

58. However there is evidence that the parties consulted Dr. Wiseman a few days after the date of the wedding on two occasions, the suggestion being that they were having sexual difficulties owing to the nervousness of the petitioner. The petitioner denies this, but she admits she was examined - the respondent said that each of them was examined. Again when she first mentioned impotence to her spiritual adviser she said that intercourse had not taken place because she resisted and she used very strong language as to the conduct of the respondent. In the Los Angeles petition she again swore on oath that she resisted the respondent. Though the petitioner in her evidence denied that she had ever resisted the respondent she gave no explanation for her words to Sister Matthew or to the statement in the Los Angeles petition.

59. It is no part of the case of the respondent that the petitioner wilfully refused to have sexual intercourse. His whole case is that the marriage has been consummated. I must of course deal with this case on the pleadings and as it is presented to me. It is unnecessary therefore for me to deal with this aspect of the case further.

60. In order to succeed, the petitioner must not only prove that the respondent is impotent but that so far as she is concerned that his impotence is incurable. Evidence was called to the effect that this was so in the present case. Dr. Wickenden, a psychiatrist called by the petitioner stated that it is impossible to cure a person who is impotent, of his impotence if he refuses to acknowledge to himself that he is impotent. This was borne out by various statements in a well-known text book written by Dr. Stafford Clark. Dr. Yenson Chu agreed that what the patient told the doctor is more important than what the doctor tells the patient. Until the patient has confidence in his doctor no help can be given. This, if I may say so, seems to me to be common sense.

61. There is also the undoubted fact that the petitioner and the respondent have lived together for some five months. There is no evidence that the respondent has tried to consult a doctor or psychiatrist. Indeed his evidence is that he did not.

62. In these circumstances I find that the marriage has not been consummated owing to the incurable impotence of the respondent. I am not suggesting that he is impotent so far as all women are concerned, only that he is incapable so far as the petitioner is concerned, that he is impotent quoad hanc.

63. There remains the defence of lack of sincerity. It is urged by the respondent that the petitioner does not in her inmost heart want a decree of nullity at all: that the only reason these proceedings are brought is that her father wishes the marriage, which he considers a misalliance, to be avoided so that the petitioner can marry suitably, that is suitably in the eyes of her father.

64. In Nash v. Nash⁽¹⁾ Langton J. at p.69 has this to say when dealing with the defence of want of sincerity in a petition of nullity:-

"The petitioner must be sincere in the sense of not having wavered in her view as to the action she will take to assert her rights after she attained full knowledge of the facts and the law concerning those rights. The Court will not allow a petitioner, after attaining such knowledge to approbate the contract of marriage and obtain rights and benefits thereunder for a term of years, and then subsequently reprobate the contract and claim that it is void upon the strength of those very rights which she has long elected to ignore."

65. There is indeed evidence that the father of the petitioner would not be adverse to seeing an end to this marriage. But it is not for this reason that this petition has been presented. The petitioner was asked if she would go back to the respondent and give the marriage another try, she refused. And I can well understand her refusal. I find that this petition is presented in good faith. The petitioner wishes to be free from a union which is unfruitful and which she is certain will always be unfruitful. Various cases in which the defence of insincerity was relied upon were quoted to me but the facts of such cases are quite different from the facts in this case. The influence of a father and the wish of the petitioner to contract a fruitful marriage are not of themselves proof of the insincerity of the petitioner.

66. I accept that the petitioner only knew the law as regards the annulment of marriage after her return to Hong Kong in late July 1967. This was not contradicted. There has been no delay therefore. She has not in the words of Langton J. which I have quoted above, approbated the marriage since then, nor has she obtained rights and benefits under the marriage. I find that the plea of insincerity cannot succeed.

67. The petitioner must have the decree for which she asks, namely a decree of nullity. It follows that the petition for restitution of conjugal rights must be dismissed.

Representation:

O.V. Cheung, Q.C. & de Basto, Q.C. (Stewart & Co.) for Wife.

Bernacchi, Q.C. & Asome (P.H. Sin & Co.) for Husband.

(1) (1940) P. 60.