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Shabbat Parashat Chayei Sara 5774

P'ninat Mishpat: Leprosy as Grounds for Divorce

(condensed from Piskei Din Rabbaniim vol. III, p. 126-131)

[Editors note: I do not feel that I am the right person in the right forum to write about Rav Ovadia Yosef z.t.l., the man, the leader, or even the halachist. Many others have and will do so. Our tribute will be to present a series of piskei din that he wrote or took part in as a member of Israel’s rabbinical courts, one of Rav Ovadia’s important positions.]

 

Case: For the last six years, the defendant (=def) has been hospitalized in a leprosy center, with horrible lesions throughout his body. His wife (=pl) is no longer willing to be married to a man in such a state and demands a get along with payment of her ketuba. Def responds that since the doctors have not precluded the possibility of his responsibly living with his wife, he is not obligated to give a get. He claims that the reason that he has not left the hospital is that he has nowhere to live. Doctors confirm that while he was contagious for years, recently his bacterial tests indicate that he is presently not contagious, even while afflicted by severe symptoms of leprosy.

 

Ruling: Even if def is not contagious at this moment in time, the disease is not stable and return to contagiousness cannot be ruled out. Halachically, regarding these types of conditions, we are sensitive to the possibility of contagion up to two years after the patient is healed (see Gittin 86a and Rashi ad loc.). Contemporary medical literature speaks of a form of leprosy that leads to limbs falling off and death and a form related to the nervous system which lasts 17-20 years. Indications are that def is suffering from the former, Heaven forbid.

The gemara (Ketubot 77a) says that one who is afflicted by boils related to leprosy is compelled to give a get to his wife, and so rule the Rambam and Shulchan Aruch (Even Haezer 154:1). These sources refer to the husband being negatively impacted by living with his wife as a factor along with the disgust the condition causes the wife. In this case, there do not seem to be medical indications that marriage is detrimental to def’s health. However, the R’em (Mayim Amukim 19) indicates that the effect on the husband is needed for a case where the wife is willing to remain married. However, when she substantiates her desire for divorce based on her disgust, this alone justifies divorce. This is the approach of more recent poskim as well. It is true that some poskim talk about sirachon (usually translated as stench), and it has not been proven that this applies to def. However, sensitivity to sirachon is obviously greater in a relationship of close contact. In any case, any condition that normally causes disgust to those exposed to it is grounds for ending a relationship (even in regard to canceling the sale of a servant when his leprosy was unknown to the buyer). One can also factor in the doubt whether the condition might be or end up being dangerous for pl.

For the reasons mentioned, beit din rules that def is obligated to give a get to pl and pay the ketuba. While we must never give up hope that def will recover, pl is not required to wait for such an outcome.

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