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 Shabbat Parashat Mishpatim| 5766P’ninat MishpatA Classical Agunah Question- part I - Excerpts from Piskei Din Rabbaniim - vol. IX, pp. 184-200
Case: A couple was married civilly in Russia in a ceremony in which the groom presented the bride with a ring in front of several Jews. Years later, the husband went to fight in WW II and did not return. The Russian army informed the wife that he had disappeared during a battle and was never heard from again, an account corroborated by a Jewish witness. Decades later, the woman wants to remarry.
Ruling: [We will be able to present only a sampling of the logic and sources of a sixteen-page ruling, which allowed the woman to remarry. We will do this in two parts, with this first part dealing with the evidence of the apparent death of the soldier-husband. Next week we will see how this could be added to other factors to create the basis for leniency.]
The leniency to allow remarriage without standard testimony about a husband’s death is that one witness, sometimes including one who is not usually accepted for testimony, is believed. In some of the cases that we accept information from one who normally lacks halachic credibility, the source must relate the information as a meisiach l’fi tumo. That is, he must not intend that his report be used to permit the wife to remarry. In this case, the letter from the Russian Army was not written to allow the wife to remarry, as it did not assert that he had died (but was an MIA). Furthermore, many Acharonim rule that an official government document, which involves the prestige of the government, is believed even when it is not meisiach l’fi tumo. Here, there is further reason to believe the authorities, as, based on the report, they paid to support the MIA’s children.
Even if we accept the report’s veracity, based on leniency regarding the source of the testimony for an agunah, we have to deal with the fact that regarding the content of such testimony, we are usually quite exacting. We generally require that someone saw the husband dead, which is missing here. There are opinions that the fact that the husband did not return from a dangerous situation, such as war, is sufficient to allow the wife to remarry. However, this court does not believe that to be the case and need not go that far. It is sufficient to ascertain that there is a level of doubt that is recognized in regard to Torah-level laws. Then we can combine that factor with others [which we will bring next week].
The mishna (Gittin 28b) lists those who were in a boat that was lost at sea among those who are given a stringent status of being possibly living and possibly dead. In other words, these people lose the presumption of being alive that most people have. Certainly, in the battles waged in that stage of WW II, when the German forces were routing the Russians, anyone who was missing in battle and never heard from again, belongs to a group, a majority of whom were dead.
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