The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-06-24
Supreme Court, Hawaiian Islands,
REBEccA P. PUUkU vs.. PUUku IA
LELEkU.
QUESTION RESERVED By McCULLY, J..
APRIL TERN, 1890.
JUDD, c. J., N'cULLY J, BIckERToN, j.
DOLE. J, ABSENT.

I ! QUESTION, Whether proof of non-corssr
5 OF a party 10 marriage can in thi
Kingdom be held 8 ground for th
annulment of marriage,
Held. that the power to snnul marriage
/, BASED solely on the statute, is Unite
? BY il, and that decree of annulmen
must state 8 statute ground therefor
that hence decree cannot be granite
! in the case submitted.
OPINION OF THE COURT BIZ N'cULLY. J
This matter comes before thi
Court upon question reserved b,
Mr.. Justice McCully. He sent it ~
with full report of the testimony
and his findings thereon as follows
In the above recited testmon!
there is disagreement only in on,
particular. the defendant testifyins
to q cohabitation at some time sub
segment to the marriage, the plaintiff
denying any cohabitation at an,
time. / think the latter testimony
is consistent with the other proofs o.
non-cohabitstion, 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 1t 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. / would not con-
slider the mere denial of young
girl unsupported by circumstances
and extraneous proof, It is here
proved that the defendant never
asked her to marry him. The par
ties has no social acquaintance with
each other. / take the circumstance
of non cohabitation without consid-
ering whether under our statutes
what is termed 8 consumation of
the marriage would be necessary,
and the failure of consumation
would be q ground of snnulment
physical inability not being al
Legged.
Our statutes prescribe ceremo-
NAL or formal marriage, not neces-
sarily 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. 1t 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
yolyed in the term contract. The
doctrine of law respecting contracts
must be applied; there must be
mutual consent, the consent of each
party.
But the grounds for an annulment
Of marriage are distinctly prescribed.
1t is statute power given to Justices
IF the Supreme Court, and the power
S limited to what is granted. Any
decree Of annulment, it appears to
ne, must be based on one of the
specific statute grounds
take leave to reserre for the con-
ideration of the Court in Baneo the
question whether a proof of non
consent can be IN this Kingdom held
! ground for the annulment of a
marriage"
By THE COURT. We believe the
question here presented is new in
his Court. 1t may be that the grave
loubt whether the Court could go
'eyond the powers clearly given BY
tatute, has prevented an application
or annulment of marriage on the
round of non-consent. It may be,
nd this seems probable, that no
uch case has been known where a
lon-consent, and persistent after
efusal to give consent, could be SO
learly proved as has been in the
ase before US. We take it to be an {
bsolute fact of the case that this G
'iaintiff never gave the consent of :
ler mind to this marriage.
The statute under which nullity of :
marriage may be made by the Court J
} Section 1918 of the Code. 1t pro :
ides that it may be pronounced for :
ither of SIX enumerated causes ex-
sting at the time of the marriage. .
mong which Is not the cause, non
onsent, upon which this suit is
rought Has the Court power to 4
nnul a marriage on any other
rouDdi
In support of the affirmative it is
ubmitted by petitioners counsel
nat the language of the statute is :
ermissive in its nature, that there G
re no words of a restrictive char :,
cter, such as are found in the sta v
lite of divorce, where the language :,
sed is. Divorces from the bond of q
latrimony shall be granted for the p
suses hereinafter set forth, and no
her" But an enumeration of allowed
auses should be construed as an
of others. The statute
,ncerning divorces enacted in 1870
ears the marks of design to be par