Shabbat Parashat Chukat| 5770
P’ninat Mishpat: Grounds for Psychological Observation to Prove Case(condensed from a p’sak din of Rav Shaul Yisraeli, Mishpetei Shaul, siman 44)
Case: A husband is suing his wife for divorce, after being separated for years and immediately living with another woman. He claims that his wife has psychological problems that make her incompatible to live with. He demands that she be sent for psychological observation with the hope of proving the veracity of this claim. The wife objects to being subjected to the observation.
Ruling: The Rama (Even Haezer 154:3) says that if a couple is not getting along and each blames the other, the husband is not believed to say that she is at fault because women are under the presumption of being upright people until proven otherwise. Rather, we put other people among them to see who it is who is responsible for the volatile situation. The source for this halacha is the Rashba (cited in the Beit Yosef, EH 74), who says that if the husband explains his harsh treatment of his wife with the claim that she curses him to his face, he is not believed. This in turn is based on the gemara (Ketubot 72a) that a husband cannot justify strict restrictions on his wife by means of accusations about her behavior unless he substantiates the problem. However, we see that even in a case where the husband has not substantiated claims against her, he can arrange for means of observing her and thereby proving his case.
The idea of enabling him to prove his case is apparently based on the Rosh (Shut 6:9). He says that if one litigant claims that he has proof to his claim that is in the possession of another litigant, we can force him to produce it, just as one can demand of a third party. However, the Tur (CM 16) says that this is so only when the demanding party demonstrates to beit din that there are indications that such evidence exists. In the case of a couple with mutual recriminations, while we said that the wife is under the presumption of not acting grossly inappropriately, the husband also deserves the presumption that he did not act harshly without justification. Therefore, it is appropriate to check out the claim even if the woman prefers not doing so.
We would thus entertain the husband’s request, if we had an indication that he has grounds for his claim, e.g., he wouldn’t simply leave his home after years of marriage for no reason. However, this would be on condition that he convinced us or at least declared that if his claims proved to be without basis, he would be willing to reconcile; he is not. The problem with his stand is further weakened by the fact that he immediately went to live with another woman, which leads one to believe that his leaving had to do with the second woman in his life, not his wife’s alleged psychological problems. It is likely then that his request is an attempt to humiliate his wife, which beit din should not lend a hand to. This resembles the idea that a woman who says that her husband is despicable in her eyes is not believed if we know she has interest in another man (see Shulchan Aruch, EH 77: 2,3).
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