Wednesday, April 18, 2012

Rabbeinu Yonah: Ma'us alei - Mitzva to divorce wife

Talmidim of Rabbeinu Yona (Shita Mekubetzes Kesubos 64a): Rabbeinu Yona wrote, "Even though we don't force a man to give a get when the wife says he is ma'us alei (disgusting to me) - that is only referring to forcing him by beating him with staffs. However beis din informs him that he has a mitzva to divorce her and they advise him to divorce her. And if he doesn't not in fact divorce her then this is a case of when a person transgresses the words of the rabbis that it is permitted to call him a sinner. However Rabbeinu Tam disagreed and said that even this we don't say to him but if he should come to ask whether he should divorce her without her getting the kesuba then beis din gives him the advice that he should divorce her immediately. Rabbeinu Yona also wrote that there is an opinion that after 12 months he should be forced to divorce her with staffs. However our teacher said that we never force him with staffs but rather after 12 months he is commanded to divorce her and if he doesn't divorce her than he is called a sinner as we mentioned above. But if we  forced him to divorce her then it is a get me'usa by Jews that is invalid.
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Rav Ovadiya Yosef (Yabia Omer E.H. 3:18.13) : And in truth even according to the view of the poskim who hold that one does not force the husband to give a get when she claims ma'us alei, nevertheless there is a view that says there is a mitzva for the husband to divorce her and surely when there is a concern that because of the delay in get a get she will go off the derech. As we find in Shita Mekubetes (Kesubos 64)," Rabbeinu Yona wrote, "Even though we don't force a man to give a get when the wife says he is ma'us alei (disgusting to me) - that is only referring to forcing him by beating him with staffs. However beis din informs him that he has a mitzva to divorce her and they advise him to divorce her. And if he doesn't not in fact divorce her then this is a case of when a person transgresses the words of the rabbis that it is permitted to call him a sinner. However Rabbeinu Tam disagreed and said that even this we don't say to him but if he should come to ask whether he should divorce her without her getting the kesuba then beis din gives him the advice that he should divorce her immediately." Furthermore the Rema (Y.D. 248:20) writes that when the wife says ma'us alei the husband is obligated to divorce her. The Taz notes that the Rema here is only reporting the view of the Rambam but the Rema's true view is recorded in E.H. 77 where he doesn't mention that the husband should be forced to divorce her. But according to what we have said the words of the Rema (Y.D. 248.20) has a solid basis and that is the words of Rabbeinu Yonah. This is also noted by my friend the Tzitz Eliezar (5:26.4) based on the Noda B'Yehuda Kama (YD 68) who brings the words of the Rema as halacha l'maaseh and foundation principle. He notes that there is a basis to utilize this view at times of need according to the specific facts and needs of the time and appropriateness - depending on the evaluation of the beis din. I also say that in contemporary society with the degradation of the generations in free countries where every man does what he thinks is correct and there is a great increase in arrogance in the world and experience has taught that when a woman leaves her husband with the claim of ma'us alei and she is in limbo without receiving a get - that she will go and live with other men without the slightest shame or sense of embarrasment. As a result there is an increase in mamzerim in the world. In such a case we say that their degradation is to their benefit. This is expressed by the Ramban (Kesubos 63b), "Chas V'Shalom I am not arguing against the decree of the Gaonim to force him to divorce his wife and not only that but I strongly criticize those who say that it is not correct to follow their decrees but only the law as stated in the Talmud. In fact it is correct to listen to the Gaonim and to follow their decrees. Nevertheless now it is best to be very concern not to follow their decree because it has been abrogated because of the immorality of the generation." In other words in the time of the Ramban, even though women then had the brazeness to claim ma'us alei but they did not reach the extreme of chutpza to live with another man without recieving a get as we find in our days. But in the days before Moshiach as we are in now it is extremely relevant to considering returning to the decree of the Gaonim. And this is surely true when she is young and there is a real concern that she will go off the derech and there isn't much chance that she will return to her husband. Therefore it would appear that those who want to do something to force the husband to give a get have a solid basis for that decision. That is because the concerns that existed at the time of the Gaonim that the woman might go off the derech have returned. [In the time of the Gaonim the concern was that the woman would convert to Christianitity for Islam rather than face end her days as an anguna]. Thus we see that whether the get should be forced or not is dependent on the particular time and era. And thus I have seen the gedol hador - Rav Chaim Palaggi in his Chaim v'Shalom (2:35) where he writes regarding forcing the husband that the view of a number of poskim including the Beis Yosef that the husband should not be forced to give a get. He writes, "Nevertheless acording to everyone agrees that the woman is not forced to live with the husband. Therefore after a year or two after the time that they have separated from each other it would appear that he should be forced to divorce her. That is because there are two factors.  The man is not able to exist without a wife and the wife herself is not able to be without a husband. And this is surely true where she is young that we have to be concerned for disasterous results when she is chained as an aguna. Just look at how lenient the poskim are concerning preventing agunos in particular when she is young until they even go the extreme of relying on a minority opinion.  And surely the obligation lies on every dayan to be lenient is this manner in order to avoid trouble for both the man and the woman."

Rav Chaim Palaggi is a great tree that one can rely on and surely in our day. And it is the same thing in cases where it is possible to combine various disputes of the poskim besides the claim of ma'us alei to be lenient. Also study Chaim V' Shalom (2:112), If there is a dispute between a husband and wife and the wife wants to be divorced and the husband refuses - one should establish a limited time for the matter to be resolved. And if we wait until 18 months  and we have despaired of reconcilliation and it appears to beis din that there is nothing more than can be done for the marriage - they should separate the couple and force the husband to give a get until he proclaim,I want to give it.All of this that I have written is for the honor of G-d and His Torah."
 It is possible that Rav Palaggi is not talking about forcing with clubs but rather just calling him a sinner or similar techniques which is in accord with the view of Rabbeinu Yona and the Rema which we mentioned before.
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21 comments :

  1. I think I once read in RYoG that it was a mitzvah for a Talmid Chochom to actually hold a grudge and take revenge if his honor was slighted. Can anyone explain this?

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    1. It is a gemora Yoma ( 23a)R. Johanan further said in the name of R. Simeon b. Jehozadak: Any scholar,who does not avenge himself and retain anger like a serpent, is no [real] scholar.1 But is it not written: Thou shalt not take vengeance nor bear any grudge?2 — That refers to monetary affairs, for it has been taught: What is revenge and what is bearing a grudge? If one said to his fellow: ‘Lend me your sickle’, and he replied ‘No’, and to-morrow the second comes [to the first] and says: ‘Lend me your axe’! and he replies: ‘I will not lend it to you, just as you would not lend me your sickle’ — that is revenge. And what is bearing a grudge? If one says to his fellow: ‘Lend me your axe , he replies ‘No’, and on the morrow the second asks: ‘Lend me your garment’, and he answers: ‘Here it is. I am not like you who would not lend me [what I asked for]’ — that is bearing a grudge. But [does] not [this prohibition apply to] personal affliction? Has it not been taught: Concerning those who are insulted but do not insult others [in revenge], who hear themselves reproached without replying, who [perform good] work out of love of the Lord and rejoice in their sufferings,3 Scripture says: But they that love Him be as the sun when he goeth forth in his might?4 — [That means,] indeed, that he keeps it in his heart [though without taking action]. Rut Raba said: He who passes over his retaliations has all his transgressions passed over?5 — [That speaks of the case] that an endeavour was made to obtain his reconciliation, and his consent is obtained.
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      Minchas Chinuch593(241:1): Do not take revenge - Look at the Rambam (Hilchos De’os 7:7). However in Yoma (23a) it explains that this prohibition only applies in monetary matters but not matters involving bodily pain there is no prohibition of not taking revenge or not being spiteful. In the case of bodily pain it is only an act of piety not to hold a grudge. But the Rambam and also the Chinuch omit mentioning of this distinction and in fact it appears that they hold that one transgresses the prohibitions in all cases and this is a contraction to the gemora. Also look at the Rambam (Hilchos Talmid Torah 7:13) where he states that a talmid chachom that has been publicly embarrassed should take revenge and hold a grudge. See also the Kesef Mishna and the Lechem Mishna. Nevertheless no one commits a sin for taking revenge for personal suffering. I found in the Semag (11-12) who states that for personal suffering one does not transgress the prohibition of revenge and that this is learned from Yoma (23a). Therefore the question remains why the Rambam and the Chinuch apparently rule contrary to the gemora.

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    2. Thank you, Rabbi E., for taking the time to explain things to me.

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    3. glad you found it satisfactory

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  2. Translation please?

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  3. Reuven- I'm not volunteering to translate all that. But if you're interested in a relatively thorough synopsis, I can try to provide. I'll B"N start if you indicate interest.

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    Replies
    1. I'll try translating it soon - it is an important teshuva

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    2. Definitly am interested in a translation or synopsis.

      Thanks

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  4. "Abba, why did you get divorced?"
    "Ovadia Yosef said that if a woman wants a divorce she must get it immediately, or she will not be religious."
    "But Abba, Ima was never religious anyway."

    "Abba, why did you get divorced?"
    "Ima wanted it. She got to have you with her, and I had to pay support, so it was easy for her. There was not any real reason."
    "Why did you agree?"
    "I did not have a choice - Ovadia Yosef said women will not stay religious if we do not give them what they want."

    "Abba, why did you stop being religious?"
    "After I lost everything in a mindless religious divorce, I decided I want my final judgment to be with the devil, rather than with the G-d of the rabbis there."

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    1. Binyamin, no one is saying he has to give the get immediately. Look at the post. Rav Palaggi says 1 or 2 years, and Chaim v'Shalom says 18 months.

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    2. Binyamin:

      It is Rav Ovadia Yosef. He is the spiritual leader for roughly 2/3 of the world's (religious) Jewry, and the Posek HaDor, he deserves at least a little respect, even if you don't agree with him.

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    3. Rachman Ben-TzadikApril 19, 2012 at 10:52 PM

      He is the spiritual leader of Sephardic Jewry, which only represents a minority of Jewry (both religious and overall.) Sephardic Jewry is roughly 20% of Jewry, with Ashkenazic being the bulk of the rest.

      But, yes, he most certainly must be called Rav (or Rabbi).

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  5. Does Posek Hador Maran HaRav Yosef Sholom Eliashev shlit"a hold like this?

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    1. It is difficult to know exactly how Rav Eliashiv holds. We have a teshuva in his name in Kovetz Teshuvot, that would seem to imply that no matter the reason, even extreme spousal abuse, the man has the right to withhold a get.
      http://daattorah.blogspot.com/2012/04/rav-eliashivmaos-alei-get-not-required.html#comment-form

      Personally I have two problems with the Kovetz Teshuvot.
      1) Rav Eliashiv didn't write it. It is a redaction of his opinions from when he sat the Beit Din HaGadol and recorded in the sefer Piskei Din. His opinion was not always the majority opinion(meaning it wasn't always the accepted halakha) and the Teshuvot brought are extremely truncated from what he himself wrote there(in Piskei Din).

      2) Rav Eliashiv himself has been known to rule contrary to what is written in Kovetz Teshuvot. A couple of cases of that were brought on this blog back during the EJF controversy.

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  6. Binyamin I have a better one:

    "Abba why'd you get divorced"
    "Your mother burnt the cholent."
    "That's a reason?!"
    "Well Beis Shammai didn't think so but Beis Hillel did so I jumped on the Kula train."


    (Backround chatter: "you should call it Beis RAV Hillel" "Does Rabeinu Shamai hold this way? Rumor has it that he's smarter than Hillel.)

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  7. "Does Posek Hador Maran HaRav Yosef Sholom Eliashev shlit"a hold like this?"

    Who made him posek hador? Chief Rabbi Yizchak Herzog when he appointed him to the Rabbanut?

    Two can play the same game.

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    1. Rav Eliashev resigned and disavowed himself of the rabbunut, thus making his changed feelings about them clear.

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    2. That's not true. While he retired in protest, he did not disavow the Rabbinut. Here is from his wiki:
      בעקבות היבחרו של הרב שלמה גורן לרב הראשי לישראל ונשיא בית הדין הגדול, ובעקבות פולמוס פסק דין האח והאחות, שהיה שנוי במחלוקת הלכתית והרב אלישיב נטל בו חלק פעיל, הוא פרש מבית הדין. עם זאת, הורה לאחרים שלא לפרוש מהרבנות במקום שלא נבחר מועמד ראוי אחר.

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  8. "Rav Eliashev resigned and disavowed himself of the rabbunut, thus making his changed feelings about them clear."

    Nice try. He quit bacause he had an argument with R Goren. He influenced the election of current chief Rabbi Metzger very strongly.

    And he continues to support an APPEALS court in the Rabbanut. See his biography Hashakdan 120-121

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