Pickett v. Pickett , 27 Minn. 299 ( 1880 )

Gilfillan, C. J.

Action by a wife for divorce, on the ground of adultery by the husband. As to the fact of adultery, the court below found that, after the marriage, the defendant had carnal intercourse with an unmarried woman, but decided that such carnal intercourse was not adultery within the meaning of the statute regulating divorce, holding that statute to use the word “adultery” in the restricted' sense in which it is used in the statute making adultery a criminal offence, and not in the more enlarged sense in wdiich it is commonly used.

In some of the states, our own included, it is held that to constitute adultery within the statute punishing it as a crime the act must be with a married woman. In defining the term within the meaning of statutes regulating divorce, the text writers say that, the party charged with adultery being married, it is immaterial that the particeps criminis is single. 1 Bishop on Mar. & Div., § 703; Reeve’s Dom. Rel. 207. And this court, in State v. Armstrong, 4 Minn. 251, (335,) while holding that to make it a statutory crime the sexual act must be committed with a married woman, states that, “when regarded in a civil light, as a violation of the marriage contract, no distinction is made between an illicit connection by a married man with a married or an unmarried woman. In either case, for the purpose of a divorce, he is guilty of adultery.”

There may be reason for giving the word a restricted meaning in the statute punishing the act as a crime, and which treats the act as one affecting the peace and good order of society, while the popular and more enlarged meaning is intended in the statute prescribing causes for. divorce, where the act is treated as one affecting the rights- of husband and wife. All the prescribed causes for divorce are violations of the marriage contract, or neglect of or inability to perform its obligations. Adultery is specified because it is a violation-, ■the greatest there can be, of the contract. Sexual intercourse by the husband with an unmarried woman is as much a v-ioT lation of the contract and of the rights of the.wife a,s it would be if committed with a married woman. The word “adultery,” in its popular sense, would include this violation of the contract, whether committed with a married or unmarried woman. There is no reason, then, for giving it a more restricted meaning.

Judgment reversed, and court below directed to enter judgment according to prayer of complaint.