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Shabbat Parashat Pinchas| 5770

Pninat Mishpat: The Obligation to Divorce When the Husband Disgusts His Wife

(condensed from Mishpetei Shaul, siman 20 a psak by Harav Mordechai Eliyahu z.t.l. and Harav Shaul Yisraeli z.t.l.)

Harav Mordechai Eliayhu and our mentor, Rav Yisraeli, sat for many years together on the Supreme Rabbinical Court. We began working on this piece of joint work between the two just before we received word of Rav Eliyahu’s passing. May this piece be a tribute to the two of them as they “renew their friendship in the Heavenly yeshiva.”

Case: A wife stated that she cannot stand to remain together with her husband and gave strong reasons to support this. She told the regional beit din that she agrees to be categorized as a moredet (a wife who denies her husband conjugal rights) and thereby lose rights to payment of her ketuba in return for a get. The husband now is appealing beit din’s obligating him to give a get. [There is a financial dispute as well, which we hope to deal with next week.]

                                                          

Ruling: There are three categories of women who refuse to live with their husbands, with some halachic differences between them. There is a woman who is a moredet, who says that she does not mind living with him but that in the meantime she wants to cause him distress. There is another who is a moredet of the type known as ma’is alay (he disgusts me). The woman agrees to be of this category, which is not a given because of the existence of the following alternative. There is a case of ma’is alay with particularly strong reasons for these feelings, in which case, the wife is eligible for her ketuba.

The Rambam (Ishut 14:8) says that in the case of ma’is alay, we force the husband to give a get, as we cannot force a woman to live as a captive with her husband. However, the Rama (Even Haezer 77:3) says, like Rabbeinu Tam (Tosafot, Ketubot 63b), that we neither force the wife to live with her husband nor do we force the husband to divorce his wife. Yet, the Rama (Yoreh Deah 228:20) renders the following apparently contradictory ruling. If a woman swore to marry a certain man, she may undo the oath because of ma’is alay, “because even if they were married, if she says ma’is alay, he is obligated to divorce her.” Some commentaries claim that this Rama is said according to the Rambam’s opinion, which is difficult since the Rama does not accept the Rambam. It would seem that the real answer is that the Rama holds that regarding ma’is alay the husband is indeed obligated to give a get, just that he disagrees with the Rambam’s claim that we can force the husband. The reason for that is that, even if it does not appear so, it is possible that the woman is making the claim because she is interested in another man, in which case a forced get would be invalid. Thus, in regard to a woman’s own oath, if she knows that the reason really is ma’is alay, her oath can be undone.

There are other reasons to instruct the husband to give a get in such a case. Firstly, de facto the husband becomes one who is living without a wife, which is wrong (Even Haezer 1:4), as he is not allowed to take a second wife. Secondly, since he does not have what to legitimately gain from a wife who will not live under one roof with him, he is guilty of acting like a Sodomite by not giving a get for no gain. If he does so out of vengeance, he violates lo tikom (do not take revenge). Therefore, the regional court is correct that the husband should give a get.

 

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Dedication

In memory of

The Rishon Letzion

Rav Mordechai Eliyahu ztvk”l

 

This week’s Hemdat Yamim is dedicated in loving memory of
R' Meir ben
Yechezkel Shraga Brachfeld
o.b.m 

Hemdat Yamim is endowed by
Les & Ethel Sutker of Chicago, Illinois in loving memory of
Max and Mary Sutker and
Louis and Lillian Klein, z”l.

Dedicated in memory of
Mina Presser bat

Harav David and Bina

on the occasion of her yahrzeit, 24 Tammuz
and members of her family who perished in the shoah
Al Kiddush Hashem
 
 

 

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