Wednesday, May 9, 2012

Rav Yosef (3:20) - Forcing only sometimes

Yabia Omer (E.H. 3:20.34): [Original Hebrew click herel© Translation by Daniel Eidensohn] We learn from all this that we have mentioned that we have found that many of the great and mighty of the Rishonim held like the Rambam that we force the husband to divorce his wife when she claims ma’us alei. We also note that there was a decree by the Saboraim to force a get for ma’us alei. The decree was enforced until the time of the Gaonim – a period of almost 600 years. They did signifcant things in order to force the husband to divorce when she said ma’us alei. It is true however that many of the poskim did not agree to this and this includes the Shulchan Aruch (E.H. 77) who says not to force a divorce. Nevertheless when there are other significant factors for a divorce then we combine them and rely on this in practice. This approach to force a get in ma’us alei is particularly relevant for Yemenites who have never deviated from the rulings of the Rambam in everything he says. They already have had the practice in Yemen to force the husband to give a get when she says ma’us alei – in accord with the view of the Rambam. Therefore it is appropriate that they continue this practice here in Israel to retain their normative practice. In addition in the present case there were witness that the wife was forced into marriage. Despite her resistance to marry this man her relatives forced her with irresistable force and trickery to marry him. The view of the Rashbash is well known that in such a case we force the husband to divorce her. There are many Achronim who say to rely on the Rashbash in this matter to force a divorce. In particluar where there are other doubts and double doubts that can be combined.  The words of the Rashbatz are well known, “Even though there are in the teshuvos of the great Achronim rulings that the husband should not be forced at all in the case of ma’us alei, nevertheless we are not insignificant authorites and this issue of divorce is dependent on logic and commonsense. A judge can only make rulings based on what he sees.” We see a simlar statement in Yachin v’Boaz...So even the Rashbat who accepts the view of the poskim who disagree with the Rambam – agrees that when there are other significant facts that one can be lenient and follow the Rambam...In another teshuva I go into detail to show that there are a number of poskim – both Rishonim and Achronim – that say that if the beis din rules that the husband is forced to give a get according to various poskim – even if they are mistaken – and thus it is a get me’usa – the get is only rabbinically invalid.  And so sure with the type of coercion which is done today which doesn’t involve beatings but only imprisonment – which has nothing to do with the imprisonment of previous ages – that makes it only a double rabbinic doubt. And according to many poskim we can act deliberately lenient in a case of rabbinic doubt and surely when it is a double rabbinic doubt. And this is surely true in an emergency situation involving an aguna such as this.  And it is is infinitely more so in the case of ma’us alei in which many poskim are lenient but according to the straight law and also because of authoritative decree. And even the Rosh who disagrees with the Rambam’s position writes that bedieved if the husband had been forced to give a get – then it is done already  and we accept the get as valid. The Rashbatz says the same thing. And a woman who had been divorced with this forced get can get married l’chatchila. So surely in our case where the marriage was coerced that the get can be forced l’chatchila. In addition there is a basis in this case to question the validity of the marriage itself since it was done through threats and as a minimum he definitely acted inappropriately in how the marriage was done.  So even though we are not going to annul his marriage, nevertheless it is an additional basis to force the get. In addition the wife is a very young woman and she is alienated from her husband – there is a very real danger according to what the beis din has observed that she might degenerate morally and go in an immoral path if her hopes for a get are dashed. Given that she has been chained for many years as an aguna. We have already mentioned that Rav Chaim Palaggi said, “In such a case to force the husband to give a get. There are other poskim who say we should be exceedingly lenient in such cases to prevent her going into an immoral path and that she should reject Judaism – especially when she is so young.... And especially when it looks like she will remain an aguna her whole life – it will definitely lead to disaster. And surely in modern times when immorality has increased and modesty has decrease.”...  An additional factor is that after beis din has issued a ruling that the husband must give his wife a get there is an issue that there is a mitzva to listen to the words of the sages. And so even according to the poskim who disagreee with the Rambam they would agree that the husband has an obligation to give a get. The husband continues to be stubborn and rejects all suggestions of the beis din to resolve the issue. He just refuses to listen. Also the woman said in front of beis din and her husband that she has run out of patience and she threatened that if she isn’t divorced she will go in the ways of sin. She apolgy which she said later was done solely at the direction of her lawyer. The beis din thought she was serious the first time and was not making an idle threat. There is also absolutely no chance that she will agree to return to her husband and give him another chance despite great efforts to placate her with pleas and expensive gifts. She repeatedly refused to consider that option. She definitely will never change her mind. Therefore when all of these facts are combined, we ruled with the full authority of beis din that the husband was to be forced until he says he is giving the get willingly.... And given that he was stubborn and had hardened his heart he was not likely to  comply by the mere fact that the beis din say he must give a get. Therefore he was taken to prison by the government forces in order to force him to comply with beis din’s ruling. After he sat in jail for a number of days he agreed to divorce his wife. That was arranged by this court... Therefore the woman is free to marry anyone she wishes – except for a cohen...

14 comments :

  1. I do not understand the whole Teshuva. It seems that according to those who disagree with Rambam this woman cannot be freed with force. But this is wrong. The Rosh clearly says that although anyone who does according to the Rambam the child is a mamzer, in a case where trickery was done to get her married we force the husband to give a GET. I believe it is chapter 35 and his stringent rulings are in chapter 43. This is brought clearly in the Gro and Shulchan Aruch chapter 77. So why make a long teshuva when it is obvious that in such a case we force the husband even according to the Rosh who as the great opponent of doing like the Rambam. Also, this has nothing to do with the general case of MOUS OLEI where the Rosh would consider doing like the Rambam a cause for mamzerut.

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    1. yes it is difficult to understand what he is doing. If he is saying that he wants to poskan like the Rambam - he doesn't need to go through all of the factors. So he obviously is just saying that we don't posken like the Rambam - but use it in conjunction with other factors. But I agree with you that there really isn't any need for citing the Rambam - the force is justified even to those who disagree with the Rambam

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    2. In all fairness you are coming in on the 34th seif of this Teshuva, so a lot of water has passed under the bridge already, and I would be willing to say that the beginning of the Teshuva would be more understandable in light of the whole.
      He makes a number of claims:
      1) That a Get Meusa, is only invalid M'D'Rabbanan if done by a B"D.
      2)מאוס עלי combined with other factors(trickery in one case) but he does not elaborate those factors. We can assume from other Teshuvot that he has written that infertility and domestic abuse are also included, allow the use of force.
      3) Concern that the woman will go into sin is cause for the use of force.
      4)A B"D ruling that a husband must give a Get and the husbands ongoing refusal to comply is a factor that will allow the use of force.

      The Teshuva, at least this seif of it, is not just dealing with the one situation, he is enumerating several situations.

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  2. Good to see common sense ruling the day!

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  3. It is vital to note that Rav Yosef felt it necessary to go through loops and loops to justify being matir forcing the husband to divorce her. So, clearly, Rav Yosef holds that in a case where a wife simply declares maos alei, without additional justifying factors, we do not force the husband to divorce her.

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    1. Actually Rav Yosef says precisely that in another Teshuva, that we have examined:
      http://daattorah.blogspot.com/2012/05/maus-alei-forced-only-if-disgusting.html

      Only Rav Shachter and the ORA folks have tried to argue that kefiya is done as soon as the woman wants out, and none of their claimed support supports that.

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  4. RDE,

    Can we at least agree that ORA is acting within the bounds of this teshuva? I am not asking you to agree with ROY, just agree that IF this is correct, ORA's actions are certainly legitimate.

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    1. James I don't agree with that.

      Which of the factors that are enumerated above do you think give ORA the right to act?

      In many ways(such as trying to get the man fired from his job) ORA exceeds halakhic bounds, and in such a way that the final situation may be worse than the first.

      Take the case that started this: Friedman V. Epstein.
      1) There is no abuse(that we know of)
      2) She was not tricked into a marriage
      3) No B"D has ordered that he give a Get
      4) All of ROY's teshuvot(except those dealing with domestic violence) only talk about the use of force after years have passed after a B"D has ordered that he give a Get.

      So I really don't think that you can claim support from this.

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    2. james I can't believe you are asserting that this teshuva has anything to do with ORA. ORA goes into action with a simple case of ma'us alei. This is a case where trickery and force was used on a child to get married. He beat her. They are from Yemen where Rambam is normative halacha. There is a clear and likely danger the woman will give up yidddishkeit if she doesn't get a divorce. It is incredible that you think this can be used as a justification for ORA. How do you see this teshuva can justify ORA's activities.

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  5. shoulnd'nt this marriage (forced marriage) have been annulled? Isn't it a problem that the beith din believes and recongnises that the marriage was forced and still is not ready to annull it? This would mean that they recognise a forced marriage!

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    1. That is one possibility though Rav Yosef clearly didn't want to go that way. It is rather strange that this case - where there was a forced marriage, she comes from Yemen where the Rambam is the accepted halacha etc etc. - is being cited by the beis din as relevant for a case which seems to be a simple case of ma'us alei.

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  6. The link to the original teshuva is broken.

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