Tuesday, April 17, 2012

Rav Eliashiv:Ma'os Alei - Get not required (1 174)

Rav Eliashiv (Kovetz Teshuvos 174): Question: We are dealing with a case in which it apparently has been shown that the wife hates her husband – heart and soul – because of his behavior which is simply abnormal. The woman therefore has the claim of ma’us alei with a clear basis. This couple has lived separately for over 6 years. The question is whether the beis din will comply with the request of the wife and require him to give her a get. Answer: Even if you grant that this woman has the status of one who says ma’us alei with a clear justification, that in itself does not require that the husband give her a get. Look at Shut HaRashba (# 135 - attributed to Ramban), Question: When a woman claims ma’us alei... is the husband obligated to divorce her....? Answer: ... You should know that she is not able to force her husband to divorce her since  a woman goes out of the marriage sometimes according to her desires and sometimes not according to her desires. On the other hand the man only leaves the marriage only when he want to leave it... From all these you see that when a woman claims ma’us alei we do not force the husband to give a divorce... Even though the Rambam writes that when a woman says ma’us alei the husband is forced to divorce her – the Rambam is not correct in this matter... Concerning the kesuba and dowry that she brought him – according to the din she does not lose anything unless she insists on being a moredes for 12 months and all these 12 months she is not forced... However if she remains a moredes for 12 months and her husband wants to divorce her – she loses everything.... That is her din when her husband divorces her according to his wishes after 12 months. But if the desire to divorce comes from her – as we said before – he is not forced to divorce her. The words of the Rashba imply not only is the husband not forced to divorce her when she claims ma’us alei but that he has no obligation to give her a get! This is also apparent from the words of Tosfos(Kesubos 63).... Shulchan Aruch (E.H. 77:2): If she says that he disgusts me and I can not have relations with him – if the husband wants to divorce her she does not get any money from the Kesuba at all. Rema (E.H. 77:2)... All of this is only when she doesn’t give a reason and justification for her words as to why she finds him repulsive. But if she does give a reason for her words... And we don’t force him to divorce her  nor do we force her to remain with him. And if you want to claim that he must divorce her – it is obvious that since we don’t force her to remain with him then of necessity that there can’t be an obligation of the husband to give her a get. It is the same thing.

32 comments :

  1. Rabbi Dovid EidensohnApril 17, 2012 at 11:20 PM

    If a husband marries a woman forbidden to him, we force him to divorce even with violence. If a husband cannot fulfill his family roles because of physical problems, the Talmud commands him to divorce, but we do not force him. In such a case some permit passive ostracizing but the Shach and Chazon ish and others forbid it. The third and most prevalent case is when the wife claims she is disgusted by the husband and wants a GET. In such a case no coercion is permitted, surely not anything passive. The Shulchan Aruch permits passive coercion in EH 154 when the Talmud commands a GET but not in EH 77 when the woman demands a divorce MOUS OLEI she despises her husband. Then no coercion is permitted.

    But should the husband give a GET anyway in MOUS OLEI? Rav Elyashev shlit"o says he is not obligated, and infers this from various sources.

    My understanding of this is that the Beth Din does not consider the husband obligated to give a GET, but the husband himself should give one, because he must have a wife and have children see beginning of EH, and because he requires kedusho not being single, and these are obligations of the Torah, that a man be married in a functioning marriage and be removed from temptation. But Beth Din does not interfere, as is taught in the beginning of EH that in latter generations Beth Din does not interfere with marital issues because they create an uproar and the community makes it impossible for Beth Din to force people to marry or divorce.

    But the husband should force himself, especially if he knows that the wife despises him. In such a case, even those who reject the Rambam's forcing of the husband in MOUS OLEI because Beth Din doesn't know if she means it, if the husband knows she means it, he should force himself to give a GET.

    Today when women go to court, some husbands fear to give a GET, because then the wife may try to destroy his relationship with his children or demand more money and continue to sue him in court. I don't have a comment on this now. But I do feel that a good lawyer might be able to reassure the husband, but I am not sure.

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  2. Rav Dovid Eidensohn: You say he should give one so that he can have a family and not be tempted, and that is surely a good reason. But shouldn't he also give a get because it is cruel to deprive his wife of the ability to remarry just because he can?

    Moreover, how could he act cruelly like that unless he hates her and wishes ill for her? In that case, since he hates her, shouldn't he be compelled to give the get?

    Also, Rav Elyashiv said "since a woman goes out of the marriage sometimes according to her desires and sometimes not according to her desires," but where does it come from? I don't understand it. If she left him and is clearly never coming back, then how could she be acting against her desires?

    One more thing. Rav Elyashiv says this:

    "And if you want to claim that he must divorce her – it is obvious that since we don’t force her to remain with him then of necessity that there can’t be an obligation of the husband to give her a get. It is the same thing."

    With due respect to Rav Elyashiv, is this really the same thing? The "same thing" would be to force him to remain with her if he wants to divorce her. Since he can in fact divorce her himself, then the "same thing" would be to allow her to leave if she wants and compel him to give a get.

    On a slightly different topic, I've heard that women can also be get-refusers, by refusing to accept the get. Is it legitimate to force her to accept it?

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    1. If a wife refuses a get, the husband can still take a second wife or a concubine...

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    2. On a slightly different topic, I've heard that women can also be get-refusers, by refusing to accept the get. Is it legitimate to force her to accept it?

      My understanding was that in such a case the husband deposits a Get with the B"D and then moves on with his life. Remarries or whatever.

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    3. Yeshaya,
      That is a good point, as we are a kind nation. But tell that to a husband who loves his wife and loves his children and now may lose both because of what he feels is an unjustified effort by the wife. I therefore only wrote things that I tell husbands who are not giving a GET and they accept what I say but they have their decision to make.

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    4. Yeshaya,
      Hating a wife is hate and hate is awful, especially if children are involved. But there was a time when they loved each other, so why not try to recapture that time? When a couple hates each other look for two things: relatives and others who are kindling the flame with their mouths, and a lack of proper therapists. There are today and have been always masters at making shalom bayis. A therapist told me that if the right people get involved marriages can be saved. But if left to fester, the hate is a horror.

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    5. Rav Dovid Eidensohn: thank you for your replies. The view that nearly all marriages can be saved is also held by Rav Shalom Arush, author of Garden of Peace, who reports much success when men (women too, but especially men) are convinced to start following his rules of shalom bayis.

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  3. This is why I really don't like the Teshuvot of Rav Eliashiv, they are often truncated and give no sense as to the particulars of the case or why the Rav ruled the way he did.

    So I am going to bring a not so hypothetical, as it is a case that I personally know of. A woman shows up to B"D with 8 broken ribs and an arm broken in two places. Her husband beat her a metal bar. At first the husband, and his Rosh Yeshiva try to deny the violence, but she produces three kosher witnesses, all neighbors of theirs who came to her screams thinking she was being attacked by a muslim.

    So she is claming Maos Ali. She has no children and wants no support, she simply wants to be able to move on with her life and marry someone who will hopefully treat her with the barest human dignity. Nevermind what other Rabbanim have said. According to Rav Eliashiv, and this Teshuva, is the husband then exempt from having to give her a Get?

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  4. I think that this thshuva captures very well the spirit of the torah, in which marriage is considered a Kinian, an act of appropriation of the wife by the husband.

    Since the wife becomes an object, and has no say of her own (she can hardly do any legal transaction without her husband's approval), it is logical that her feelings are completely disregarded. I think that there are many talmidey hahamim who are not even aware that the concept of a female orgasm even exists.

    This Torah spirit is strongly at odds with our mentality today, where every citizen - male or female - has equal rights.

    In order to perpetrate the Torah tradition, it is important to raise daughters in a spirit where they are denied civil rights. like Rabbi Dovid Eidensohn promotes it in his videosl.

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    1. Batmelech,
      I once spoke in a shull about gender issues, and it seemed to go well, until an older lady accosted me in public and said, "Do you beat your wife." I was at a loss what to say. Should I protest or what? Just then a lady burst out laughing. She said, "Do you know his wife?"

      Why don't you ask my daughters if they want to be modern?

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    2. Batmelelch,
      I was once in a Beth Din and suddenly we noticed an apparition coming into the building. I went outside to see what it was. It was a tall, lovely young woman, who was wrapped up like ten medieval nuns, fantastic. I asked her what she wanted and it seems she was a baales teshuva a professional writer who had enough of secular freedom and wanted to be a real Dovid Eidensohn type of lady. Do you think she was normal? Come to Monsey or any Haredi area and there are a lot of her here.

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    3. Batmelech,
      If a husband maims his wife the way you describe it, it is surely much, much worse than the standard MOUS OLEI. I don't know the details of the case, but if the details you describe are accurate, it is very possible that the husband has crossed the line into doing things that are utterly incompatible with marriage, and in some of these, we beat him to force the GET. But, it may make a difference to the Beth Din involved if this was a one time fling not likely to be repeated, or a common practice. A common practice in such a case would find a very sympathetic ear if they came to me. But again, each case must be clearly researched, even though such a thing seems to cross all the lines.

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    4. BatMelech,
      I am very disturbed by the question posed as being one where the husband who is a criminal is supported by a rabbi. This is sick. I don't hate the husband who is probably somewhat insane, but the rabbi! Wow.

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    5. Whether or not you are disturbed by the question, and it is a real case with which I am familiar, you didn't answer the question.

      According to this Teshuva is the husband required to give his wife a Get? I'm not so worried about what other Rabbanim have written or done, or even what the B"D in the case did(because I know that, and there is now a Rosh Yeshiva in Jerusalem who is posul eidut). What concerns me is, given the wording of this Teshuva in the name of Rav Eliashiv, what should the B"D have done? According to this teshuva is there grounds to force the husband to divorce his wife?
      I know it is an extreme case, however, when the Rav says, Even if you grant that this woman has the status of one who says ma’us alei with a clear justification, that in itself does not require that the husband give her a get. What does that mean?

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    6. He did not care to reply...

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  5. @Rabbi Michael Zaddok:

    Your question is spot on. I am curious to hear the answers from Rabbis Dovid and Daniel Eidensohn

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  6. What does Moredes mean in this context?

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    1. The problem is he[the sefer] isn't talking about a moredet, he is talking about a woman with a justification for Maos Ali, as it is written, Even if you grant that this woman has the status of one who says ma’us alei with a clear justification, that in itself does not require that the husband give her a get.
      That in my mind would include a woman who is beaten. Whose husband forces her to committ aveirot with him, ect. In which case moredet does not apply.

      Likvod HaRav it should be mentioned that, at least the last I had hear, Rav Eliashiv himself didn't write the Kovetz Teshuvot. The sefer was written(redacted would be a better word) from material found in Piskei Din, which was the recordings of the Beit Din HaGadol when Rav Ovadia Yosef, Rav Kappach and Rav Eliashiv sat the Beit Din together.
      While all of the Teshuvot given represent the opinion of Rav Eliashiv at the time, he was not always the majority opinion, meaning his opinion was not always how the case was decided nor arguably, "the accepted halakha."

      Ultimately to understand the case at hand one would have to look up the original case in Piskei Din, and thus see the full case that came before the B"D and the full reasoned ruling. You have none of that here. To further complicate the matter, only the first volume of Kovetz Teshuvot actually lists the source in Piskei Din.

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    2. I understood from this tshuva that any wife denying sexual relationships for 1 year is considered a moredet and looses all rights...

      Is this correct?

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    3. If she doesn't have a valid reason. As the Rav says, All of this is only when she doesn’t give a reason and justification for her words as to my she finds him repulsive. But if she does give a reason for her words... And we don’t force him to divorce her nor do we force her to remain with him. And if you want to claim that he must divorce her – it is obvious that since we don’t force her to remain with him then of necessity that there can’t be an obligation of the husband to give her a get. It is the same thing.
      It appears that at least according to this Teshuva, she is only a moredet, if she does not have a valid reason for her words.
      However, even if she does have a valid reason, like getting beaten with a metal bar, then we still do not force him to divorce her(according to this Teshuva).

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    4. But who defines a valid reason?

      If she says every time he comes near me, it makes me vomit, but I don't know why, is this a valid reason?

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    5. Batmelech,
      MOUS OLEI is basically defined as being so disgusting that she cannot have marital relations with him. But if she does have marital relations but is angry about his behavior that is probably not enough. On the other hand, if she does reach a state where she can no longer relate to him in marital relations even if she is married and have children for many years, if she can explain why a new thing happened she may win her case. She has to convince the Beth Din that she is honest in her statement that she cannot be with her husband, and they will accept her statements without any kind of proof if they feel it is believable.

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    6. In short: there is no clear cut definition and it is up to the subjective evaluation of the beith din whether a wife should be forced ('encouraged') to have marital relations with her husband...

      Because I was always under the impression that the wife has no obligation whatsoever to have marital relations with her husband. I was taught it was an obligation of the husband towards the wife and not vice versa.

      See how propaganda leaves out essential bits of information - or how men distort the law in their favour.

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    7. Batmelech, I don't know where you're getting the idea that women are to be forced (or even "encouraged") to have relations when they don't want to. That's not what he said, and that's not the law.

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    8. Batmelech do you think it's ok for a girl to get married and then declare I do not want to have relations with you ever? Can she force him to stay married to her under such circumstances because "hey relations aren't my obligation it's yours"? Is this going to be the new male agunah crisis?

      No one is forcing her to have relations with her husband. But she does lose the right to stay married to him, for obvious reasons.

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    9. "Batmelech, I don't know where you're getting the idea that women are to be forced (or even "encouraged") to have relations when they don't want to."

      Because I have women around me who are told just that by rabbonim. (And see the comment by none, just after you, and by Binyamin)

      @none:
      "Batmelech do you think it's ok for a girl to get married and then declare I do not want to have relations with you ever?"

      Absolutely. Take the situation where the husband has aquired a STD through an extramarital affair and cannot be healed (before the age of antibiotics).

      Or take the situation where the husband constatly demeans his wife, so that she does not want relationships any more.

      Or take the situation of physical violence.

      Or just assume he had extramarital affairs and she does not want him any more.

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    10. Uh you're changing the case on me. You seemingly were commenting that we shouldn't be forcing women to have relations with there husbands (they should have the right to just say no). I responded that it's not fair to force a man to stay married to a woman that refuses to have relations. Now you've set up a bunch of cases where the woman's refusal is justified based on the husbands behavior. I was not discussing that kind of case and neither were you.

      If she says every time he comes near me, it makes me vomit, but I don't know why, is this a valid reason?

      That is the kind of refusal to have sex which will cause a women to lose her right to stay married.

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    11. I never argued that he should be forced to stay married to her if she does not want to have sex. This is something you brought up.

      I argued, on the contrary, that
      1) She should never be forced to have sex (nor should he)

      2) If she does not want to have sex and wants a divorce, he should give it to her

      My position is that marriage as well as sex should be consensual, i.e. it does not work if only one of both want it.

      So I completely agree that not wanting sexual relationships is ground for divorce. And wanting divorce is ground for divorce too...

      I do not think it brings blessing to force someone to stay married against their will, even though divorce might cause heartbreak.

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    12. PS: My problem is that "shalom bayis" often is a euphemism were the wife is pushed to accept the unacceptable, like infidelity, disrespect, violence...

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  7. One must also apply some historical context to Rav Elyashiv's words. When he says "according to her desire... or not," etc., he is referring to the biblical requirements for get. We now also have additional rabbinic and customary requirements. Biblically, she may receive a get against her will, but we do not permit that today. However, despite the rabbinic prohibition, the biblical rule is still used in understanding the rabbinic rules, and may be a deciding factor in certain situations.

    In the quote near the start of this post, I understand Rav ELyashiv to have merely been explaining that accroding to biblical law, a woman can NEVER force a man to give a get, and that his reading of subsequent enactments is that they never change this rule.

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  8. @daas torah:

    Since you did not reply wholeheartedly "yes" when I asked you whether you would fullfill your mitzwa to kill 1000 amalekite babies if you had the occasion, you also aknoledge that Torah evolves over time and not every Torah imperative is morally justifiable at our day and age.

    Torah law is changing and has been changing over centuries, often in order to adapt to local/temporal cultures and moral references. Some "parties" do it more slowly, others more rapidly, but overall it changes and it could happen that something that was a mitzwah becomes unacceptable in a later time or vice-versa.

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    1. Batmelech your style is basically "when did you stop beating your wife". Please climb down from your tree and try discussing the issues instead of issuing pronouncements. You have a raised a number of important points - but your approach is blocking discussion rather than encouraging it.

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