The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-06-21
Supreme Court. Hawaiian Islands.
REBEcCA p. PUUKU VS.. PUUKU kA-
LELEKU.
QUESTION RESERVED BY MCCULLY, J..
APRIL TERM, 1890.

QUESTION RESERVED BY MCCULLY, J.,
APRIL TERM, 1890.
JUDD, G. j., M'cuLLY j., BIcKERToN, j.,
DOLE, j., ABSENT. i
QUESTION, Whether proof of non-corsent
of party to marriage can III this
Kingdom be held ground for the
annulment of marriage.
Held. that the power to annul marriage is
based solely on the statute, is limited
by it, and that decree of annulment
must state statute ground therefor;
that hence decree cannot be granted
in the case submitted.
OPINION OF THE COURT By M'CULLY, J.
This matter comes before this
Court upon a question reserved by
MIR. Justice McCully. He sent it up
with full report of the testimony,
and his findings thereon as follows:
''In the above recited testimony
there is disagreement only in one
particular, the defendant testifying
to cohabitation at some time sub
sequent to the marriage, the plaintiff
denying any cohabitation at any
time. I think the latter testimony
is consistent with the other proofs OF
-cohabitation, and from my view
of the witnesses, it is the version
which is to receive credit.
The case then stands, that the de-
PENDANT never gave consent to the
marriage. It is true that she uttered
an assent which was forced by the
dominant authority of her chief, an
assent evidently expressed, or not
denied, before the minister who per-
formed the marriage ceremony, but
Immediately interpreted and revoked
by her escape. Only the clearest
proof all around could bring me to
this conclusion. I would not con-
slider the mere denial of a young
girl unsupported by circumstances
and extraneous proof, 1t is here
proved that the defendant never
asked her to marry him. The par
ties has no social acquaintance with
each other. I take the circumstance
of non cohabitation without consid-
ering whether under our statutes
what is termed a consumation OF
the marriage would be necessary,
and the failure of consumation
would be a ground of annulment
physical inability not being al
leged).
Our statutes prescribe ceremo-
NAL or formal marriage, not neces-
sarily a religious one. They pre-.
scribe that a license to marry shall
be obtained from an appointed
agent, and that the ceremony be
performed only by a person having
an authorization thereto These
may be termed external provisions
for the regulation of the making OF
marriages, acts required by other
persons. As between the parties it
is termed the marriage contract, G.
L. p, 423. It is not expressed in
| our statutes that there must be the
consent of each party thereto, but in
my opinion so much as that is in.
volved in the term contract. The
doctrine of law respecting contracts
must be applied; there must be q
mutual consent, the consent of each
party.
But the grounds for an annulment
| of marriage are distinctly prescribed.
It is a statute power given to Justices
of the Supreme Court, and the power
is limited to what is granted. Any
decree of annulment, it appears to
me, must be based on one of the
specific statute grounds.
I take leave to reserve for the con
sideration of the Court in Banco the
question whether a proof of non
consent can be in this Kingdom held
a ground for the annulment of q
marriage"
By THE Court. We believe the
question here presented is new in
this Court It may be that the grave
doubt whether the Court could &c
beyond the powers clearly given by
| statute, has prevented an application
| for annulment of marriage on the
ground of non-consent. It may be,
and this seems probable, that nc
such case has been known where a
non.consent, and a persistent after
refusal to give consent, could be SC
clearly proved as has been in the
case before us. We take it to be an
absolute fact of the case that this
plaintiff never gave the consent OF
her mind to this marriage.
The statute under which nullity OF
marriage may be made by the Court
is Section 1918 of the Code. It pro-
vides that it may be pronounced for
either of six enumerated causes ex-
listing at the time Of the marriage,
among which is not the cause, non
consent, upon which this suit is
brought. Has the Court power to
annul marriage on any other
ground?
In support of the affirmative it is
submitted by petitioners counsel
that the language of the statute is
permissive in its nature, that there
are no words of a restrictive char
acter, such as are found in the sta
tute of divorce, where the language
used is. divorces from the bond of
matrimony shall be granted for the
causes hereinafter set forth, and no
other" But an enumeration OF allowed
causes should be construed as an
/ exclusion of others. The statute
concerning divorces enacted in 1870
bears the marks of design to be par
ticularly stringent and to check a
too great facility in obtaining di-
vorces. It cannot, however, be con-