Sunday, May 15, 2016

SUMMARY HALOCHOT ON MO'US OLAY AND SHAMING A HUSBAND BY RABBI GESTETNER"

update: added an approved English summary at the bottom


Rabbi Eidensohn,

I spoke with Rav Gestetner and he reviewed and approved the English summary of his mo'us olay letter that is copied below.

Rabbi Gestetner asked that you please post the English summary under the Hebrew image of his letter that was already posted.

Thank you.

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INFORMAL SUMMARY of RAV GESTETNER'S LETTER ON MO'US OLAY

The whole letter applies to the case of where a wife claims mo'us olay, meaning that the wife is disgusted by her husband.

Being that there is a new trend in our camp to pressure husbands who refuse to give a Get through publicly shaming him with letters from Batei Din and rabbanim (something that rabbanim in previous generations never did) we are publicizing here the clear halacha in this issue that all the poskim unanimously agree upon.

Summarizing what's been written here with all the sources:
Even a husband who is disgusting and has bad character traits, and his wife left him for many years, and she declared that she will never come back to him:
1. He is still not obligated to ever give her a Get,
2. Its prohibited to deny him any benefits if he doesn't give a Get.
3. Its prohibited to tell even him privately that he's obligated to give her a Get and that if he doesn't give a Get, he's a transgressor. If he is told this, then the Get is pasul. (*)
4. All the more so, its prohibited in any manner to shame him in any way, even with a husband who is obligated to give a Get.
5. We can't take any action until one of them changes their mind. Either she wants to come back to him, or he wants to give a Get.

(*) Just to emphasize the extent that this halacha applies, even in a case where a husband betrayed his wife and disappeared for many years, and even after he married another woman in violation of halacha, if after they caught him, he says he's willing to come back to his first wife, and the first wife doesn't want to accept him, the halacha is that we aren't even allowed to tell him that he's required to give her a Get, even though she was a real agunah up to now.

The letter is emphasizing that shaming a husband is equal to beating him up for a Get. Once a husband is willing to come back to his wife, we can't claim she's an agunah.
==================================Criticism of Rav Gestetner's views

I published the view of Rav Gestetner without reading either the Hebrew or English document before publishing them. However on reading them I disagree strongly with his statement that no one disagrees with his conclusions.

I don't think that what Rav Gestetner presented is normative halacha. If a beis din views that the wife's claims are legitimate and objectively that the husband is disgusting - there are pressures that can be brought on the husband and in fact are. To simply make a blanket statement that no matter how disgusting the husband is or what he does - that no pressure can be brought is simply not true nor is reflective of what is done in beis din.

Not that there aren't poskim who hold these views - but I don't think it is helpful to deny what recognized poskim do. Here are a number of sources which clearly indicate that pressure is put on the husband - though it is clearly limited within the boundaries of Rabbeinu Tam. This is against the conclusion of Rav Gestetner point daled "Also the harhachkas of Rabbeinu Tam are invalid today. In other words even "withholding benefit" alone.is also prohibited to do today because it is considered to be like nidoi and also because the rationale offered by Rabbeinu Tam " that the husband is able to go to another place where they don't know about it.  Therefore even this type of pressure invalidates the Get.

In sum, Rav Sternbuch's printed teshuvos which I have translated below clearly disagree with the view of Rav Gestestner. The fact that he does not acknowledge the legitimate differences regarding this issue is simply not acceptable - nor does he either bother citing them.
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Shulchan Aruch (E.H. 154:1): These are the cases where the husband is forced to divorce his wife and give her the kesuba. A person who has developed bad breath, or bad odor from the nose or has started a job as collector of dog excrement or tanner or a miner of copper. However if she wants she can continue living with him (And if she knew about these conditions before they got married he is forced to divorce her because she thought she could live with it Tur) If the husband developed boils then we force him to divorce his wife and to give her the kesuba even if she wants to remain living with him (or she made an agreement with him before they got married) we do not listen to her but we force them to separate – because sexual intercourse is unhealthy for him. If she says that she will live with him with witnesses so that they won’t have sexual intercourse – then we listen to her. Rema: Some say that if he became an apostate then we force him to divorce with the help of non Jews... And others disagree and say we don’t force an apostate or anyone else who transgresses Judaism to divorce unless he causes his wife to sin e.g., feeding her treif food or he transgressed the promise that he took on himself not to fight with her or to hit her or he takes oaths and doesn’t fulfill them because children die for the sin of transgressing oaths. A person who runs a house of prostitution and his wife complains – if there is testimony that confirms this or he confesses – there are those who say we force him to divorce his wife. However if they bring non Jewish children to him that is not a basis to be concerned because they might be lying about him.

Shulchan Aruch )E. H. 154:21): All those cases which the gemora says that the wife should be given a divorce – that means that the husband can be forced by being beaten with sticks. However some say that all those cases in which the gemora does not explicitly say the husband is forced to give a get but only says the wife should be divorced – the husband is not to be forced with sticks, but is only told ,”The sages require you to divorce your wife” and if he does not divorce his wife then it is permitted to call him an avaryan. Rema: Since this is a dispute of the sages [whether all cases where the sages say to divorce one’s wife the husband may be forcing by a beating] it is appropriate to be machmir and not beat him in order to avoid making a get me’usa (invalid get because of coercion). But if the marriage constitutes a sin then everyone agrees that the husband can be forced to divorce with a beating. As a general rule all cases where beating is not permitted we also do not use nidoi Nevertheless in these cases [where beating and nidoi are not permitted] it is possible to decree on all Jews not to do any favor for him or do business with him or to circumcise his sons or to bury him – until he divorces his wife. Any chumra that beis din wants to do they can do – as long as it doesn’t constitute nidoi. However one who doesn’t fulfill his sexual obligations to his wife it is possible to place him in nidoi or cherem until he fulfills his obligation or divorces his wife. This is not force except to motivate him to fulfill his obligation...


Prison
Yabia Omer (E.H. 3:20.34): 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 significant 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 practise. This approach to force a get in ma’us alei is particularly relevant for Yeminites who have never deviated from the rulings of the Rambam in everything he says. They already have had the practise 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 practise. 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 irresistible 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 particular 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 authorities 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 similar 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’us – 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 the 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 disagree 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 divorce she will go in the ways of sin. She apology later was done solely at the direction of her lawyer. The beis din thought she was serious and not 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 repeated refused to consider that option. She definitely will never change her mind. Therefore when all of these facts are combined, we rule with the full authority of beis din that the husband is to be forced until he says he is giving the get willingly.... And given that he is stubborn and has 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...[
Telling husband it is a mitzva to give/Sin not to

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 embarrassment. 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 receiving 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 aguna]. 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 according 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 disastrous 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 reconciliation 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.

Forced Get – kosher bedieved?

Yabia Omer (E.H. 3:20.34): 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 significant 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 practise. This approach to force a get in ma’us alei is particularly relevant for Yeminites 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 practise here in Israel to retain their normative practise. 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 irresistible 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 particular 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 authorities 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 similar 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 surely 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 the 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 disagree 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 divorce she will go in the ways of sin. She apology later was done solely at the direction of her lawyer. The beis din thought she was serious and not 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 repeated refused to consider that option. She definitely will never change her mind. Therefore when all of these facts are combined, we rule with the full authority of beis din that the husband is to be forced until he says he is giving the get willingly.... And given that he is stubborn and has 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...[

Rav Sternbuch (5:345): Question: A woman who has been separated from her husband for a number of years and she claims ma’us alei and there is a clear basis for this claim which has been verified. It is clear that there is no chance that they will reconcile. The husband is close to one of the chassidic rebbes who gives him great honor. The beis din has meat with them many times and is firmly convinced that there is no possibility of reconciliation. Therefore they asked th husband to give his wife a get. However the husband has acted cruelly and refused and Even though I am presently traveling but since this is an emergency situation I will answer briefly. You should know that many of the Rishonim including the Rambam and Rashi ruled that in a case of ma’us alei we force the husband to give a get. And some say that we force the get because of a decree of the Geonim. In contrast, Rabbeinu Tam and the Ri as well as other Rishonim disagreed and they held that a get can not be forced in a case of ma’us alei. The Rosh writes (43:6) that since there is a major dispute as to what the halacha is we don’t stick our heads between the great mountains. He also writes that whoever is lenient and forces a get results in an increase in mamzerim. The Shulchan Aruch (E.H. 77:2) also says not to foce the get. So even though we agree that the get should not be forced when a claim of ma’us alei, nevertheless such a husband should not be given honor. Therefore it is necessary to inform the rebbe who is honoring him that he is giving the husband help to torment his wife which is a severe sin. [[

Harchakas of Rabbeinu Tam don’t make get me’usa

Shulchan Aruch )E. H. 154:21): All those cases which the gemora says that the wife should be given a divorce – that means that the husband can be forced by being beaten with sticks. However some say that all those cases in which the gemora does not explicitly say the husband is forced to give a get but only says the wife should be divorced – the husband is not to be forced with sticks, but is only told ,”The sages require you to divorce your wife” and if he does not divorce his wife then it is permitted to call him an avaryan. Rema: Since this is a dispute of the sages [whether all cases where the sages say to divorce one’s wife the husband may be forcing by a beating] it is appropriate to be machmir and not beat him in order to avoid making a get me’usa (invalid get because of coercion). But if the marriage constitutes a sin then everyone agrees that the husband can be forced to divorce with a beating. As a general rule all cases where beating is not permitted we also do not use nidoi Nevertheless in these cases [where beating and nidoi are not permitted] it is possible to decree on all Jews not to do any favor for him or do business with him or to circumcise his sons or to bury him – until he divorces his wife. Any chumra that beis din wants to do they can do – as long as it doesn’t constitute nidoi. However one who doesn’t fulfill his sexual obligations to his wife it is possible to place him in nidoi or cherem until he fulfills his obligation or divorces his wife. This is not force except to motivate him to fulfill his obligation...

Tzitz Eliezer (17:51): There is a couple who have been married 20 years and have not been successful in having children. There have been medical treatments for more than 15 years without success. The wife blames the husband and the husband claims that both of them require treatment and that he is hopefully that they still might have children. The wife wants a divorce she says she only have a few more years in which she can give birth as she is 46 years old. They have been living separately for the last few years because the wife claims she can not stand living with him anymore. The medical reports that both of them have defects in their reproductive organs and that they are more likely to have children with other partners. The beis din in Jerusalem has already posken that the husband is obligated to give his wife a get but added that it is impossible to force him. The husband doesn’t reject the decision that he is obligated while the wife has complained to us that the husband was obligated and she wants a posek to that effect. We have tried every possible way to motivate the husband to agree to a get without success. The husband had requested that the beis din reevaluate the situation since his medical condition had improved and they reacted by the statement mentioned above that he could not be forced to give a get but they said that was true in his unimproved condition also – but that they still felt he was obligated to divorce his wife and there was no need to reopen the case. In light of these facts the wife came before us and requested a psak that the husband should be forced to divorce her since it was apparent that they weren’t going to have children together and it was mainly her husband’s fault. After our beis din investigated the material thoroughly we issued a psak that said, “After investigation of the matter we find that there is not sufficient basis to change what the original beis din ruled which was that there is no grounds to force the husband to give a get to his wife. Nonetheless he is obligated to give a get according to the original psak. We note that it is wrong that the husband is to making her an aguna. The husband who claims to be Torah and mitzva observant but yet doesn’t listen to the psak of the beis din is committing a serious sin. We call on him to change his evil ways and act like a good Jew which includes obeying the mitzva of listening to the sages and he should give a get immediately and not leave a Jewish woman as an aguna. Therefore it was decided 1) that the beis din is not complying with the appeal of the wife who requested that her husband be forced to give a get. 2) the husband is obligated to give a get to his wife immediately 3) If the husband doesn’t give a get within 3 month then the beis din will deal with taking appropriate action as described in Shulchan Aruch (E.H. 154) and the commentaries.Now three months have passed and there has been no response or action. The husband is ignoring the matter and he maintains his rebellion in not freeing his wife from being an aguna. Therefore we have told the husband that which it says in Shulchan Aruch (E.H. 154:21), “The Chachoim have obligated you to divorce your wife and if you don’t - it is permitted to call you a sinner (avaryan).” Consequently we turn to Jews everywhere to come to the aid of the Jewish woman - who has been made into an aguna because her husband refuses to listen to beis din to free her from her chained status by giving her a get – by refusing to do any favor for him or to have dealings with him until he has given a get as the Rema paskened Shulchan Aruch (E.H. 154) and similar sanctions. That is because it is clear that the cause for the woman request for a get is do to the faults of the husband. [[

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 embarrassment. 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 brazenness to claim ma'us alei but they did not reach the extreme of chutpza to live with another man without receiving 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 according 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 disastrous 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.


Rav Sternbuch (4:301):… You should be aware that we are obligated to fight against her going to secular courts and we prevent her from remarrying if she does and if the get is given under these circumstances there is a suspicion that it was coerced (me'usa). Nevertheless in a case where she claims she can't stand him (ma'us alei) and there is no reason to believe they can be reconciled and the man is simply being cruel to her and is being spiteful by not to giving her a divorce - then even though it is prohibited for us to exert any force- G-d forbid! - nevertheless it is correct to notify the husband that the view of many of the gedolim (e.g., Rambam, Ravad, Behag, Rashbam, Rashi etc) is that he is sinning and they would encourage him to give her a get. Because even these poskim are concerned about creating [an invalid get] which would leave her as a married woman even bedieved - so G-d forbid that we should use any type of coercion. Regarding the issue of tormenting her and leaving her an aguna - it is correct for him to be concerned for her claim that she finds him revolting (ma'os alei) and it is prohibited for him to leave her as an aguna - even if she is not correct. But we are not to coerce him G-d forbid with any type of coercion that would possibly bring about a get me'usa. Rather [once we have informed him that it is wrong for him to withhold the get] he needs to come the the realization himself that he must conduct himself like a descendant of Avraham and the verse says that the ways of Torah are ways of pleasantness and all its paths are peace and that he will find happiness with someone else.All of this we need to explain to the husband. That leaving her as an aguna is a transgression of a severe sin of onas devarim - not to torment his wife. That refusing to divorce her serves no purpose except to get revenge against her. He doesn't want to live with her and he shouldn't think her life is worthless and he should be fully aware that in Heaven there is judgment and there is a Judge. He should also be informed that to many of the early gedolim it is correct even to force him to divorce. Unfortunately there are many beis dins that when they see that the husband doesn't want to divorce his wife they simply remain silent. But that is not acceptable. They must inform him that he is unjustifiably tormenting her and this is not correct. This of course is assuming that the beis din is convinced that there is no hope for reconciliation....

Rav Sternbuch (1:789): Question: A woman has suffered for a number of years from her husband who refuses to divorce her - how can he be forced to give a get? Answer: It is an established halacha that if the wife refuses to live with her husband because she claims he is disgusting to her (ma'os alei) that it is impossible to force him to divorce her. This is explicitly stated by the Rema (E.H. 77:3). And even if it has been a number of years that they have separated and he is being spiteful and cruel in refusing to divorce her it is clearly stated by the Teshuvos haRosh (43:6) that if we force him to give the get there is the concern that it is a get me'usa and therefore invalid and it only serves to increase mamzerim. However while it is stated in the Rema (E.H. 154:21) that nidoi (cherem) is considered force and is prohibited, nevertheless he says it is permitted to decree that no Jew should do him a favor or should do business with him or even to circumcise his sons or to bury them - until he divorces his wife. But the Pischei Teshuva (E.H. 154:30) says there these shunnings (harhakos) are equivalent to nidoi (cherem) and are not permitted to be imposed today and the only recourse is to tell him that it is permitted to call him a sinner and he says it is best to be strict according to this opinion. This is agreed to by the Chazon Ish (E.H. 105:12). He concludes in the name of the Rashba that it is not permitted to humiliate the husband or to torment him - examine this well.However it appears that what is prohibited is to humiliate him and to shun him in a manner similar to cherem - i.e, not to do business with him and not to do him a favor - and that is not done today. (Chazon Ish understands the Pischei Teshuva differently). But when he is not actively humiliated but that he is only not given honors for example he is notified that he will not receive an aliyah in his shul or any other shul and that he will not be allowed to be the shliach tzibor - then this is not like cherem at all even though it causes some humiliation. The only pressure permitted is that he should know that the community does not approve of his conduct of being cruel to his wife - but this is not called force at all.I recall witnessing an incident involving Rav Yechiel Weinberg (Seridei Aish) concerning a husband who spitefully refused to divorce his wife after a number of years and he directed that it be known and publicized that this husband was not to get an aliya in the shul. That is in accord with what I have written that this type of pressure is not called force. It is also done here in Yerushalayim to publicize notices in the street that a particular person is a sinner and has made his wife an aguna. In my opinion 1) if she has solid justification for her desire to be divorced then it would be possible and appropriate to force him actively with humiliations to give her a get. We learn from Kesubos (71a) if it is clear that he hates her then he is obligated to divorce her. 2) On the other hand if there is no apparent reason for her being repelled by him we can distance him. I am inclined to permit humiliation in such cases but it is necessary for beis din first to be very careful and thorough in evaluating the situation as to whether it is appropriate. Similarly one should not spare any efforts to encourage that she live with him when she requests a divorce and there is no clear reason except she says she doesn't like him. 3) But if there is a clear reason - then even if we don't force him with a beating we are accustomed to be lenient to pressure him with notices in shuls as I mentioned above.This that the wife creates pressure with the claim that he is tormenting her and she can not stand the situation any more and that she is ready to go to "rabbis" who are lenient in divorce - that is still not justification for us to make rulings against the Torah. The ways of G-d are hidden and some suffer physically while other suffering financially and some suffer in their marriage. We need to hope to G-d that the end of suffering has arrived and that he will divorce her. On the other hand, to force him with high payments for food or to humiliate him when it is not permitted - it doesn't help because this pressure only produces a get me'usa - G-d forbid - which has no validity. But concerning cruelty and spite which is characteristic of Sedom - only Heaven can punish him.

Rav Sternbuch (5:344): … Let me present the views of the poskim (I just want to note this information comes from a “Kuntres of Clarification” composed by Rav Avraham Horvitz who gathered together the published views). We find many of the Rishonim that permitted forcing a get when the wife claims ma’us alei. They include Rambam, Ravad, Semag, Baal HaItur, Rabbeinu Gershom, Rabbeinu Sherira Gaon, Rabbeinu Hai Gaon, Tosfos Rid, Ohr Zarua, Rif, and Rashbam. On the other hand those who prohibit forcing a get in a case of ma’us alei include Rabbeinu Tam, Ran, Rashba, Rosh, Ritva, Rav Zechariya, and Tashbatz. The Shulchan Aruch (E.H. 77) rules that because of the serverity of the issur of a married woman we do not force a get. And that furthermore according to those who prohibit physical forcing – if the get is physically forced it is possible that it produces mamzerim. Nevertheless Rabbeinu Tam who prohibits forcing found a solution. That was to decreed that it was prohibited to speak to him or to do business with him, to eat with him or drink or associate with him or visit him. Rabbeinu Tam said this doesn’t constitute kefiah (force) since he is not being beaten physically but we are merely ostracizing him. Look at the Maharik (shoresh 102). This ostracizing is called the Harchakos of Rabbeinu Tam. The Levush (E.H. 134) writes that it is possible to decree this when the wife claims ma’us alei because it is not considered kefiah (force). That is because if the husband wants to avoid giving the get – he can simply go to a different community. The Rema (E.H 154:21) agrees that beis din can decree all sorts of social isolation as long as it isn’t nidoi (cherem). The Gra agrees with the Rema and explains that since it is not a whipping and the husband is able to avoid these restraints by going to another city and thus nothing is done to him physically – it is permitted. This is also the view of the Maharshdam (E.H. 41) and the Mahari Sasson (21) and other poskim. However there are some poskim who testify that we do no longer utilize the Harchakos of Rabbeinu Tam. This is stated Mahari ben Lev (3:102) who say I haven’t seen or heard in our generation that these measures of isolation have been used. And that it is self-evident that “those who did not permit forcing - that means that they do not permit any form of ostracizing be done to the husband.” We also find in Pischei Teshuva (E. H. 154:30) who cites the Shach (Gevuras Anoshim 72) that after he cites the words of Mahari ben Lev writes - that it is best to be machmir and avoid these methods. Also the Chazon Ish (E.H. 108:12) is against the use of these decrees of social isolation and cites the Rashba who writes further that one is not to humiliate or torment the husband. Nevertheless it is clear there that the Chazon Is would agree that if these isolation techniques of Rabbeinu Tam are done as long as it doesn’t constitute nidoi – the get is valid. However, it is important to know that one should not decree these Harchakos of Rabbeinu Tam immediately when the wife claims ma’us alei. Because if that is done - since it is common that there are fights between a man and his wife – then the wife will be quick to assert ma’us alei. The result would be that beis din would apply social sanctions on the husband and this would cause a major disaster in the nature of marriage in our communities. The relevancy of these measures is only when the couple has already separated for an extended period of time and it is clear to the beis din that there is no hope for the marriage and she has suffered for an extended period of time. Therefore the beis din has ruled that it is necessary to get divorced but there is not to be kefiah (force). However the husband has refused to give a get. In such a case it is possible to rely on those sources, at least in our days, and to decree on him the Harchakos of Rabbeinu Tam. That is because this is not considered kefiah (force) and the get is valid according to everyone as I have noted – but only if it is done in the exact manner which I will detail.While it is is true that the Chazon Ish was against the use of these methods because he was concerned for the Rashba – Rav Horovitz makes a good observation. The Rivash (#127) cites the Rashba as saying, “That social sanctions can be applied as long as it isn’t nidoi (cherem) and that physical violence is not used and that he is not tormented physically.” In contrast the Chazon Ish asserts that the Rashba said the husband “can not be humiliated.” It would seem then that as long as there is only humiliation there would be no problem but only if done in the way I prescribe. In reality it is easy to be very frum and to do nothing but then that would mean these women would remain agunos forever. But being stringent leads to serious improper license in our day and it threatens to destroy the basic laws of marriage in the Jewish community. But when these social sanctions are done in the way that I will explain, they provide a path to save many woman from being agunos and yet we remain within the parameters required by halacha. But this is only if all the conditions that I present are observed. I think it will be of great benefit if this program is accepted – even though it seems that the Ashkenaz beis dins have not utilized these social isolation techniques in recent generations. However it wasn’t common in previous generations that a woman would claim ma’us alei as we find find today. Thus it really wasn’t necessary to utilize these techniques in previous generations. However today due to our many sins, those who deal with marital conflicts know well that there has been a great increase in the claim and that there many dangers that result from this. Therefore since these Harchakos of Rabbeinu Tam appear to be permitted by halacha and being strict leads to license to do improper things – we have the obligation to avoid stringencies and to observe the basic law as expressed by the rulings of the Rema and the Gra – but only if the conditions I set forth are followed – and only if great poskim agree with this. (It seems to me that there are countries where it is inappropriate to utilize the Harchakos of Rabbeinu Tam . That is because of fear that non Jews will claim that since we use social sanctions on someone who doesn’t obey our religion then they will also used social sanctions on us in business dealings and other areas and they will justify it from our behavior!).Here are the rules for how to apply social sanctions – even though it is obvious that in all rules there are exceptions which are best left up to the judgment of beis din. 1) It would appear that a man who has made his wife an aguna and has tormented her for a long time – even though there was no psak that he was obligated to divorce his wife – nevertheless he is causing her great distress and acting cruelly with her. This is not fit for a Jew to do since they are by nature merciful and kind. Therefore the beis din should notify the rabbi of his shul or the rabbi of the community to which he belongs that this man has made his wife an aguna and that even though he has no legal obligation to divorce her – nevertheless it is permitted and proper to publicize his debasement since he is tormenting a Jewish woman without cause. Therefore it is appropriate for the members of the shul to avoid him. But in the notification to the members of the shul it should not be mentioned at all that this has to do with divorce. The notice should only mention that his character is bad and because of that it is proper to ostracize him (Also the Maharshadam (71) writes that one should be machmir (strict) and not to mention the reason why he is being ostracized. He brings Mahari Sasson (28) who also concludes this). The congregants should obey their rabbi and institute social sanctions against the husband – because only because of his bad character.It would seem that it is prohibited to threaten the husband with high financial sanctions which he doesn’t really owe and he doesn’t have the ability to pay. Because if he is pressured through monetary considerations it become a get me’usa (a coerced get). However he can be threatened with the disapproval of everyone and that everyone will avoid him. Because in truth because of the wickedness and cruelty that he has shown it is correct to avoid him. Social isolation does not produce a get me’usa. The issue of divorce is not be mentioned at all and yet the whole community avoids him – even though according to the din there is no nidoi (cherem). I am certain that many husbands will have second thoughts and recognize their obligations and regret their course of action [through this procedure]. And if the husband does not want to give in to this type of pressure he is able to move far away and to continue his life. That is why this is not considered me’usa (coerced).A similar program is found in Shaarei Tziyon form the gaon of Biyalisk concerning the sale of chametz... so also here where everyone understands the real reason but it is not mentioned explicitly. All that is said is that it is appropriate to avoid him because of his conduct as I have written. With G d’s help these words should provide a great benefit to the many unfortunate woman who suffer and are tormented. The ways of our holy Torah are ways of pleasantness but nevertheless the sanctions are only permitted according to the restrictions I have stated. 2) It would seem that the beis din should not make any prohibitions at all. They should simply tell the rabbi of the shul or the rabbi of the community that they have thoroughly investigated the matter and that it is proper to socially isolate him. The local rabbi announces that since he has received notification from the beis din concerning the conduct of the husband that is proper to socially isolate him. Therefore the rabbi is requesting from all the members of the community not to have anything to do with the husband. That is the justification that the notification should give but the beis din should not publicize that there is an obligation to socially isolate him since that would make it similar to nidoi (cherem). There are some of the poskim that we mentioned that are extremely concerned about this.3) The beis din should not be hasty in arranging the social isolation because the fact is that many marriages are not good but nevertheless the couple stays married. Thus one should not make it easy to split up a couple even if they don’t have children and surely if the do have children. So therefore the beis din should weigh for a period of time and only in the special cases that it is clear to the beis din that it is impossible for the couple to live together should they precede to the program. But it is important to remember that the beis din has to be exceedingly careful not to treat this matter lightly and to be hasty in institute the social isolation. It should only be done after major efforts have been done to try to reconcile the couple and the beis din has become convinced that there is no way the marriage can be fixed. Even then the beis din should wait a period of time which they thinks is appropriate. It is only then that they institute the program of social isolation. With G d’s help if this procedure is followed the husband will eventually agree to negotiations and give the get.All of this is a proposal that in my opinion is proper to be accepted today – as an emergency measure and it will save many agunos with G d’s help. That is because the husband will not want to prolong the time that he is rejected and disgusting to the rest of the community and have attached to the wall notices with his name for shame since he is a cruel person. The Bach has already written that freeing agunos is like rebuilding one of the ruins of Jerusalem. However I am not saying that you must accept my proposal. Rather the decision as to whether this program should be implemented is give only to the great poskim. And even though I have brought the words of the Chazon Ish who is extremely strict because of the concern for a get me’usa (coerced get) and also I brought else the words of the Brisker Rav in this matter – nevertheless if done in the manner that I have suggested where there is no mention of the obligation of giving a get but only publicizing his character – there is no concern that the get is invalid. And in fact many gedolim agree to this approach and actually conduct themselves this way. Thus I have explained this proposal and I looking forward to the decision of the great poskim regarding it. G d should save us from error and this should be His Will.

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