Thursday, July 26, 2012

Pilegesh: Sh.Aruch E.H. 26:1 - Summary of Views

The basic question is whether pilegesh represents an alternative form of marriage based on equality rather than subordination - which has minimum responsibility and benefits but is also readily ended without the problem of Aguna  or whether it constitutes a relationship based primarily on lust and irresponsibility and thus is harmful to society, family and the individual. In the following posting I plan to summaries the different views as found in Otzer haPoskim.

Shulchan Aruch (E.H. 26:1): A woman is not considered an eishes ish (married woman) except by means of kiddushin in which she is properly sanctified. However if their relation is just fornication - not for the sake of kiddushin – she is not considered a married woman at all. Even if they have sexual relations for the purpose of marriage – which they agree to privately between them – she is not considered his wife even if he designates her to be exclusively for him. In fact not only is she not considered his wife but we force him to remove her from his house. Rema:  That is because a woman in such a relationship will be embarrassed to go to mikveh and consequently they will have sexual relations when she is a niddah (Tur). However if she is designated for an exclusive relationship with him and she goes to mikve there are those that say that is the pilegesh mentioned in the Torah  (Ravad). And some say (Rambam, Rosh  and Tur)  that such a relationship is punished by lashes because it violates the prohibition of kadesha (prostitute) Devarim (23:18).

 Does a pilegesh have kiddushin or not? If there is no kiddushin does that mean that a get is not required? Kesubos 51 states that a pilegesh has no kiddushin and has no kesuba. This question ultimately is whether a pilegesh is an eishes ish or not.  If she is not an eishes eish then does that mean she is a kadesha or zona?

The Otzer haPoskim simon 26 divdes the halachic views into a number of groups

1) Pilgesh is prohibited because we have a positive command to have kiddushin

2) Pilegesh is prohibited because she is not an eishes ish which can only be produced through kiddushin and therefore she is considered a prostitute

3) Pilegesh is only permitted for a king - and there is no kiddushin or kesuba - for an ordinary person she is considered a prostitute.

4) Pilegesh is prohibited by rabbinic decree

5) Pilegesh is permitted

6) Pilegesh is permitted by the Torah but it is morally destructive and therefore it is prohibited.

7) Pilgesh is permitted by the Torah but it constitutes an additional wife which is prohibited by Rabbeinu Gershom

8) Pilegesh is in fact permitted but has not been done for many years - but in situations of need it can be permitted.

In addition there is a major dispute as to whether kiddushin and a Get is required. Furthermore there are some such as Tosfos (Gittin 6a) which imply that the problem with pilegesh is maris ayin (rather than eishis ish) because people think she is an eishes ish. Therefore it is the minhag not to take her back if she has an affair with other men and similarly that she is given a get if she wants to quit the relationship.
 [to be continued]

3 comments :

  1. Bottom line: Which valid poskim allow contemporary pilegesh?

    ReplyDelete
    Replies
    1. Davidovici PatrickJuly 26, 2012 at 9:45 PM

      Rav Yaacov Emden ( The son of the H'ah'am Tzvi )Shehelot Yawetz volume 2 numb 15

      Delete
  2. The Quran calls them "women of the right hand".

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