The Torah that Was; the Torah that Will Be: Volume II
Today’s Split in Orthodoxy and a Troubled Future
By Rabbi Dovid E. Eidensohn
Contents
My first volume of the Torah that Was, the Torah that Will Be, was about my personal experiences pestering Gedolei HaDor Reb Aharon Kotler, Reb Moshe Feinstein, Reb Yaacov Kaminetsky, and many others. I wrote about these Gedolim and others of their time who created the Torah world. I described my personal efforts to speak to them although at the time it was like flying into space to talk to someone far removed. I realized that if I dallied time was not on my side. I was very young, and the Gedolim were not. So I went and spoke to them, asked them questions, presented questions and ideas in Torah, and observed them carefully. I sensed each time that one slip and I would… But I went.
As time went on, I continued to pester every important Torah personality that I could. Born in Washington, DC, I attended Yeshiva Or Torah DiBrisk, founded by survivors sons of the dayan of Brisk. There were three rebbes and four students. I went there after public school. I saw first hand the struggle of pure Torah in a much different world. After three years in Washington, DC, I went to Yeshiva Chofetz Chaim in Baltimore to learn for three years by the Gaon Reb Yaacov Bobrowsky zt”l, a talmid muvhak of the Gaon Reb Baruch Ber zt”l. He was one of the senior rebbes in America then, and many of the top Torah personalities in America came from his class. I then went to Lakewood to study under Hagaon Reb Aharon Kotler zt”l for two years until he passed on. That period, from the age of twelve until the passing of Reb Aharon when I was around nineteen, was a miracle for those days. My youth was spent learning from European gedolim. They taught me to fight ferociously for the old and true Torah, even in America.Yes, being a Ben Yeshiva in those days and learning from such rebbes was a great challenge, and very, very few people did it. Even in Lakewood, two people came each term and two people left. There were about eighty people in the entire Yeshiva. Only a year before he died did Reb Aharon see success, when students from his American Yeshivas began to arrive. At the same time, a group of brilliant young students arrived, and thus, in one year, everything was turned around for the better. And then Reb Aharon died.
Now I will turn to a personal note, to prepare for this volume, with its emphasis on today’s problems and tomorrow’s future. Somebody in Lakewood once told me the following from the Mashgiach, the tsadik Reb Noson Wachtfogel zt”l. It seemed that Reb Nosson, perhaps because he was a chosid or because of some other reason, had a different opinion about something than the Rosh Yeshiva did. (I think I know what the complaint was about, and I think that Reb Baruch Ber had a somewhat similar difficulty in his Yeshiva on Simchas Torah.) Reb Noson stated his opinion and then said, “Yes, I disagree with the Rosh Yeshiva on this matter. But I tell you this. If you open up Reb Aharon you will see a complete Jew. If you are opened up, there will be a chazerel.” I don’t know about that person having a chazerel, but I just hope that nobody opens me up. Yes, Reb Noson put his finger on a terrible problem: the Generation Gap. In Lakewood and in all places where the American loved a good game of basketball, he had to learn from Reb Aharon Kotler. Just thinking about it amazes me. I mentioned before that when I spoke to Reb Aharon and Reb Moshe I felt as if I was floating in outer space talking to somebody sitting in a rocket. If I made one mistake… And all that I had was chutzpah. What else could possibly get me to do such a thing?
I want to tell a story mentioned in the other volume of the Torah that Was, but it is crucial for this book, when I develop it. It was about me in the barbershop on Friday afternoon in Lakewood. I came to the barbershop and took my place in line; then somebody very important came in. Of course, I offered him my place and he accepted it. However, he knew that I liked to say Torahs, so he told me to say a Torah. I told him the Torah I had prepared to tell Reb Aharon that night. I saw his expression and added something, and he approved. That night, I said over the Torah to Reb Aharon, and he was thinking, and out of habit, I added what I had added to the Very Important Person. Reb Aharon exploded. He said, “You are going away from the proper path in learning.” When I heard that, I was amazed. That was a terrible criticism, but what a compliment! Reb Aharon noticed that I understood the compliment, but he also understood that I would never make that mistake again. From that time on, I didn’t speak to anybody except Reb Aharon or my Rosh Chabura who was the major bochur in the Yeshiva. What was wrong with talking with the Very Important Person who at that time was at the very top of the list of important people in the Yeshiva?
From that incident when Reb Aharon exploded at me, I eventually realized something absolutely incredible. Reb Aharon was not the rebbe in Lakewood! Let me explain. That Very Important Person, who is today a major Rosh Yeshiva, one of the important ones in the world, surely spent all of his time learning, and he was a top learner. But, and here is the point. He was not a Talmid muvhak of Reb Aharon, because he, perhaps like the majority of Yeshiva students in Europe and America, had a different style learned most likely from the students of the Elder of the European Rosh Yeshivas, Reb Shimon Shkop zt”l. Reb Shimon taught to say “what” and then “why.” Reb Chaim Brisker, his student Reb Baruch Ber, and Reb Aharon, held, “Never say ‘why’.” When I told my Torah to the Very Important Person in the barber shop, I said “what” and stopped. But he wanted “why” because that was the style of the major Rosh Yeshiva in Europe, Reb Shimon. But Reb Aharon accepted the style of Reb Baruch Ber who was the major disciple of Reb Chaim Brisker zt”l, who is the father of the Lithuanian Yeshiva Derech of Brisk.
Why did Reb Aharon choose Reb Baruch Ber instead of Reb Shimon? There is to that a simple answer. Reb Aharon learned in a musar Yeshiva in Slobodka under the Alter. But in nearby Kovneh was the Yeshiva of Reb Baruch Ber that was not a musar Yeshiva. Reb Aharon used to go regularly to Reb Baruch Ber’s Yeshiva to hear his shiurim. Reb Aharon interrupted the shiur and Reb Baruch Ber kept arguing and fighting with him until Reb Baruch Ber’s major Talmid Reb Shlomo Heiman zt”l would go over and calm down the protests of Reb Aharon. This lasted for a while until Reb Aharon exploded again, and once again, there was war, and once again, Reb Shlomo went over to Reb Aharon, etc. There are many pictures of Reb Baruch Ber talking to Reb Aharon in learning in the summer vacation places. Incidentally, in the book about Reb Baruch Ber called HaRav HaDomeh Lmaloch, there are many pictures of Reb Baruch Ber with Reb Shimon Shkop. It is obvious that Reb Shimon is the senior person. He was the Elder of the Rosh Yeshivas.
Our point is that Reb Aharon had a Yeshiva where perhaps most of the students came in their twenties to learn by him after they had spent years learning from students of Reb Shimon Shkop. When I spoke to Reb Aharon and gained his style, which was the style of Reb Baruch Ber which was the style of Reb Chaim, I thus, because of my youth (I came to Lakewood when I was seventeen) and because I spoke frequently to Reb Aharon and reviewed for him my findings in learning, I was not influenced by Reb Shimon’s Derech. Indeed, my previous rebbe, Reb Yaacov Bobrowsky, was a talmid muvhak of Reb Baruch Ber. I believe that my rebbes from Washington DC also learned by Reb Baruch Ber, although at that time was I too young to know the different between “what” and “why” in the Talmudic discussion.
My point in all of this is to display the Generation Gap. It was not a question of years. It was a difference between European geniuses and people like me. That is quite a generation gap. Reb Aharon Kotler was a major genius in Europe and was being primed by the Chofetz Chaim and Reb Elchonon and Reb Aharon’s father-in-law Reb Isser Zalman, to become Gadol HaDor. Reb Aharon was an incredible genius, even in Europe he was famous for this. How in the world could we Americans learn from such a rebbe?
Another great European genius who was a Rosh Yeshiva was HaGaon Reb Yaacov HaLevi Ruderman zt”l. He was the Rosh Yeshiva of Yeshivas Ner Israel. At an early age he memorized the entire Talmud. Americans were far removed from his level. But Reb Ruderman merited that people from his family such as Rabbi Newberger arranged the Yeshiva so that the students got exactly the kind of teachers that they needed, and the entire Yeshiva basked in the glow of the Rosh Yeshiva. Such an arrangement is excellent for most students, but the Generation Gap is obvious. There were other great Rosh Yeshivas who struggled with Americans even as they had lofty positions in Yeshivas. The bottom line is that the generation that learned from the Gedolim was limited in its relationship with them. The Gedolim were far too great to shine their light on the majority of Yeshiva students without making problems, and the students did not know what to do about that. I solved the problem with pure chutzpah. I went to talk to Reb Aharon, and he told me the truth, and it hurt, and I came back for more, again and again. As I mention in my first volume, I was not the biggest mechutsef in Lakewood. Somebody came to Lakewood for a summer program who was far removed from advanced learning. But he wanted to learn from Reb Aharon. So he went to Reb Aharon, put a sefer down in front of him, and asked him to explain it. Reb Aharon was very kind and gentle with him. When some of us wanted to send the boy to another Yeshiva, Reb Aharon insisted that he stay. But those who wanted him elsewhere got the job done, and I suppose I have to worry about this in the Other World.
Before Reb Aharon died, the Lakewood Yeshiva was low on students, low on funding, and low in being appreciated in America. After he died, all of this changed. People began to arrive in numbers in the Yeshiva. A girl sought a good learning boy for a husband and her parents supported them at least for a few years. The new Rosh Yeshiva, Reb Aharon’s son, Reb Shneur, was like his grandfather, Reb Isser Zalman, who was a man of peace. Reb Aharon was a man of war, and made so many enemies among the modern Orthodox rabbis and even among haredi rabbis that he had few backers for the Yeshiva. But all of this changed when Reb Yosher Ber the Rosh Yeshiva of Yeshiva University instructed his students, the YU rabbis, to support Lakewood. Therefore, the new Lakewood was a different world than the Lakewood I knew. But not everyone was thrilled with the new situation.
True, beautiful new buildings were built, and they were filled with large numbers of students heavily engaged in Torah learning. But the new status of Lakewood as a status symbol was troubling to some people. The old Lakewood was only for the rare person who was ready to suffer everything in order to study Torah. The new Lakewood was for everyone who sought the new status, the easy shidduch, the beautiful building, etc. At this point, for better or worse, the Torah in America achieved a higher appreciation and incredible success.
But let us remember our previous discussion. We said that Reb Aharon was not the rebbe muvhak, the prime rebbe of perhaps the majority of his students. They came to Yeshiva because they wanted a high Torah level. But very few engaged directly with Reb Aharon. As we explained, Reb Aharon was a European genius, a fire, a fighter, and we Americans could not just go over and talk to him. I did it because I called upon my ample reserves of azuce ponim. I forced myself to do this because I realized that Reb Aharon and Reb Moshe and others were old people and I had to make my move now. But those who learned diligently in the same Beis Medrash as Reb Aharon but did not connect with him his departure from the world severed what could have been, a personal connection to a Gadol. When I spoke to Reb Aharon and Reb Moshe at length, I was always worried that maybe somebody would come over to the Rosh Yeshivas and take them away from me. After all, they had a right just as I did to talk to the Roshei Yeshiva. But rarely did anyone come. Later when I moved to Monsey and Reb Moshe Feinstein would often visit with his rebbetsin his daughter Rebbetsin Tendler, I taught in the same shul that Reb Moshe dovened and would spend a lot of time talking Torah to him. I was terrified that somebody would take away “my Reb Moshe” but after years, I only recall a tiny amount of people who came to talk to Reb Moshe. Only one of them as I recall was a Rov who had a problem with a GET. Thus, when the Gedolim from Europe passed on, there was an emptiness. I felt it keenly.
Other people who did not talk directly to the European gedolim had a different solution to their new status. They turned to those who were now the senior Roshei Yeshiva and Talmidei Chachomim. These were usually not Europeans at all, but were students of Europeans. I had a problem with this. The new Torah was much different than the old Torah, and I didn’t feel comfortable with it. Until today, I am fighting the new generation with its different ideas, as I will discuss. And this reality, that the new generation did not have a full relationship with the old one, other than a few individuals, made problems, problems that we will discuss in this book, and show that the new leadership was not the old leadership.
Briefly, the new generation has a Torah that believes in learning Torah, becoming “gedolim” as the great goal. The old generation believed in fighting for the entire Torah. My criticism of the “new” generations are as follows: One, they are not fighting important fights, as I will explain, but putting their energy into building Torah learning with some exceptions. Two, the Yeshiva structure as it is now, creates frustrated people and no Gedolim, as I will show and quote Gedolei hador of the present and past generation.
Here is a small list of today’s issues and problems: 1. Gender war between men and women in family, between husband and wife. This leads to a terrible problem of divorces and a large population of people who are single.
2. Feminism infects the Orthodox community in various ways. The world is heavily influenced by feminism. One objective of the feminists is complete equality between men and women. The latest target is to register for the American military to draft all females just as all men must register for the draft. I spoke to “leaders” of the Torah community and they had no interest in fighting about this now. And yet, if there is a law passed for women to register for the draft, there will be a very serious question of martyrdom, besides jail and fines.
3. Years ago, the European gedolim encouraged me very strongly to fight against the Gay Rights movement. Why this should be done is something that everyone should know but almost nobody does. A few years ago, major rabbis in Monsey made a major campaign to elect a lesbian as Family Court Judge, although the opposition was a religious gentile who was against gay ideas. The senior rabbi in Monsey told me to hang up a ferocious letter that I made attacking them in his Yeshiva and shull. But someone asked me, “Why are you the only one to protest this?” Because today people have a new “Torah.” Those rabbis and some in New York find an advantage in backing a gay or lesbian for politics, because then the person is beholden to them for their political needs. This is pure gangsterism and corruption. At least, I protested, and a lot of people were happy that I did. But the major rabbinical positions in the community are held by people who have different ideas.
4. There is today a terrible spate of broken marriages in the Torah community. I personally know people from senior rabbinical families who are being torn apart by divorce battles in secular court.
5. There are many things to elaborate in the above four things. But I want to turn now to a frightening story that I personally witnessed and heard from gedolei hador of the past and present generations. Monsey Gets a Video Store Years Ago
Some years ago the Magid of Jerusalem Reb Shalom Mordechai Schwadron zt”l used to visit Monsey regularly to raise funds for Israeli Yeshivas and Torah programs. I tried to talk to him when he came, and he was very kind and wise.
In those days Monsey was a city of Torah Jews, Yeshivas, some apple orchards, plus a few snakes and an occasional bear or deer. One day, in the center of town near a Yeshiva, a video store opened. My friend and I were determined to do something about this. Rav Schwadron was in town and after a lecture he gave, we approached him and told him that a video store came to Monsey. I then anticipated a furious anger and a determination to speak publicly on this outrage. But no. Nothing. Rav Schadron simply ignored me. It was as if I didn’t say anything to him. I looked at his face. It was solid granite, turned away from me, in a pose that said, “You don’t exist.” I realized that this was no accident. The Rov was deliberately telling me that he had absolutely no interest in talking or hearing about a video store. I was stunned. I repeated myself, twice, three times, and not a change in the face. Well, I said, I am Mr. Azuce Ponim. And I am going to pursue this further!
I raised my voice and said, “Rebbe! Hashchoso!!”
That did it. The cold granite face turned directly at me. A professionally maneuvered hand moved directly at my face. A finger pointed at me and eyes were blazing. Slowly and professionally Reb Shalom said, “A Yeshiva is haschoso!”
That story took place many years ago. But even then, Reb Shalom knew that the rabbinical world had its problems. The major problem is when rabbis encourage women to force a GET from their husband against his will and remarry with that GET. That GET says Rambam is worthless, as a GET must be given by the husband willingly. And today, when Reb Shalom is no longer with us, there are ‘rabbis’ who tell married women whose husband won’t give them a GET to remarry with no GET. A senior rov in Brazil called me to tell me that they did this in his city. No husband was involved in giving the GET, and a woman is freed of her husband in defiance of the Torah and the Talmud. The same was done recently by a senior rabbi in France.
We are talking about a world that will soon be gripped in a crisis of children born of women who left their husbands with an invalid GET or no GET at all. The New York State GET law empowers women to force their husbands to give a GET and to get slapped with financial punishments or worse. Rabbi Bleich says that today all Gittin given in New York are given by husbands who realize that to refuse to divorce their wives will lead to court and it will destroy him, maybe take away his children and money. So, they give a GET. And this fear makes the GET invalid, and the children of the wife when she remarries with the invalid GET are mamzerim, or maybe doubtful mamzerim. A mamzer can marry a mamzeres, but a doubtful mamzer may not marry a mamzeres, and neither a mamzer or a doubtful mamzer may marry a regular Jewish woman. And people are silent. My rebbe Rav Yosef Shalom Elyashev zt”l was shocked that nobody protested the New York GET Law in its second phase, with its surrender to the woman and the destruction of kosher Gittin in New York State.
What can be done? One idea is from a prominent Rov in Israel Rav Abirgil who recommends today that people marry with Pilegesh, not Kiddushin. Kiddushin makes a woman a slave to her husband who can torment her at will and not give her a GET until he dies; and she can do nothing about it. She could listen to the wicked ‘rabbis’ who advise such women to force a GET from their husbands and remarry. Some such wicked ‘rabbis’ actually set up a scheme to torture a husband for sixty thousand dollars, with tortures so sophisticated that no human being could tolerate without surrendering and giving a GET that was forced, even though the children of the wife when she remarries will be mamzerim. But a couple without Kiddushin but with Pilegesh cannot make mamzerim. They simply live together in one house until it is time to leave, and either one of them can just get up and leave, preferably saying good-by! The husband can not torment the wife because she is free to just get up and leave any time she wants.
In earlier generations when Gedolim like Rav Yosef Shalom Elyashev zt”l kept an eye on the movements of the rabbis, he shot down the problems. But today, there is nobody to do this. And people who don’t know the laws of Gittin, invent what they don’t know, and we are awaiting a crisis of mamzerim.
How happy will the mothers who escape their husband with invalid Gittin be when they have a child who is announced to be a mamzer, or at least, a doubtful mamzer? A doubtful mamzer is worse than being a full mamzer because a mamzer can marry a mamzeres but a doubtful mamzer may not marry a mamzeres, nor may he marry a regular Jewish girl. We are going down the road to watching children come to shame we can’t imagine, and shame of mothers we cannot imagine. When will it end?
Here is a suggestion from a prominent Israeli Rov. He advocates that instead of Kiddushin which makes the wife a slave for her husband who will not give her a GET unless he really wants to divorce her, or dies, a woman should marry with Pilegesh. People in America and in Israel and elsewhere who marry with Kiddushin and cannot get a willing GET from the husband, is ruined. Sometimes the husband presses his advantage and humiliates the wife and teaches the children to hate her, and if she fights back he may never give he a willing GET.
Such a woman is taught by ‘rabbis’ to force the husband to give a GET. The GET is invalid and children from the next husband will be mamzerim. The only solution is Pilegesh. In the laws of Kiddushin[1], in the very beginning, we find the Vilna Gaon telling us that the source to permit Pilegesh is from the gemora in Sanhedrain 21A. He says that this is the text in our gemora although some have another text, that would require the woman to make Kiddushin. However, the Ramo and the Gro don’t follow that opinion. The Vilna Gaon concludes, that this is also the opinion of the Ramban and Rambam, that Pilegesh is permitted.
This is from the Ramban in Meyuchesses[2], a volume filled with teachings of the Rashbo, but there is there two teshuvose labelled clearly from the Ramban. The Vilna Gaon infers from the above gemora that Pilegesh is permitted, backing the Ramban, but adds that the Ramban and the Rambam both permit Pilegesh. This is strange because the Rambam forbids Pilegesh for anyone who is not a king. But the Vilna Gaon surely know that Rambam, and yet, he says that Rambam agrees with Ramban, and indeed, the Ramban in his teshuva says clearly that Rambam agrees with him that Pilegesh not done derech Zenuse, is permitted.
Reb Yaacov Emden asks how the Ramban could assume, as does the Gro, that the Rambam permits Pilegesh? Does the Rambam in Melochim not say clearly that Pilegesh is forbidden for anyone who is not a king? This is a very strong kashyo.
But the answer is as follows. Ramban says that Pilegesh is permitted by the Rambam unless it is done with zenuse. This can mean that the woman sleeps with her husband as a Pilegesh but also sleeps with other men. But if so, how can anyone permit it? And what kind of Pilegesh sleeps with two men at the same time? This violates and destroys the entire Pilegesh effort. If so, how does the Rambam permit zenuse with a king? If the whole sin of Pilegesh is only if she sleeps with two men at the same time, how can a king have her as his wife?
But the answer is that Pharoah took Sarah the wife of Avrohom for his wife, because he felt that a king may take the most beautiful woman. It is his right. When King David took Bas Sheva with force, and had a son Shlomo from her, he was exercising his right to force a beautiful woman especially the most beautiful woman to be his wife, and he anticipated that everyone would gladly accept her son Shlomo because she was forced for her beauty and he had a right to take her. Now a lady forced to marry somebody is not married to them, but a man forced may be considered married. But a king who has a right to the most beautiful woman, or to whom he considers the most beautiful for his needs, is doing something which is a violation of the Torah, as a forced woman cannot be considered marriage. But if a king does this, as he has a right to do, he exercises his right and therefore may do it. The wife knows this and accepts her lot and anticipates that her child will be the next king, which happened with King David.
Thus, we have a strong support from the Ramo and the Ramo and the Ramban and the Rambam that a Pilegesh is permitted to everyone, and that a forced beauty may be forced by a king to marry him, although a commoner does not have this right.
This answers the question that everyone asks. We find that many people in Tanach had Pilegshim and they were not kings. Why then does Rambam say that only a king may marry with a Pilegesh? But Rambam was referring to a woman whose beauty attracted her to a king, as with Pharoah and King David. A forced woman is not considered married in general, but a king has the right, and only a king. But Rambam agrees that if plain people marry a Pilegesh not with force but both are voluntary in marrying each other, that it is proper and of course the woman goes to the Mikva.
In fact, a Pilegesh couple must be guided by rabbonim how to integrate themselves into the Torah community. Everything should be done with the guidance of specific rabbinic guides. This way the community can learn to respect Pilegesh, but when people do everything on their own, we don’t know where it will end up.
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עתון חדרי חרדים
Return to the Ramo on Pilegesh
The first teaching of the Ramo was to permit Pilegesh, but the second teaching or sentence of the Ramo was to forbid Pilegesh. We quote, “And some say that Pilegesh is forbidden and that one who marries a Pilegesh is beaten for committing the sin of ‘a woman should not be a kedaisho a prostitute.’ (Rambam, Rosh and Tur).” This is a very strong condemnation of Pilegesh from Rambam, Rosh and Tur. It disagrees with the Ramban and the Vilna Gaon mentioned before who permit Pilegesh, as we explained there. At this point we have a serious disagreement mentioned in the Ramo itself.
But the Beis Shmuel here explains that he disagrees with this Ramo. He maintains that there is no proof to say that Pilegesh is a sin that requires a beating. After a lengthy discussion of open opinions of the greatest authorities he concludes that one who takes a Pilegesh is not beaten and that there is no proof that Pilegesh is even a sin. When we realize that a great Gaon Reb Shalom Mordechai HaCohen, grandfather of the famous Israeli mashgiach Rav Shalom Mordechai haCohen, writes that Jews always accept the opinion of the Beis Shmuel, this carries a great weight to be lenient with Pilegesh, and to accept the teaching of the first opinion in Ramo that Pilegesh is permitted, as the Vilna Gaon writes that this is the opinion of the Ramban, Rambam and the gemora in Sanhedrin 21A.
On this teaching of the Ramo to forbid Pilegesh that the Beis Shmuel disagrees that Pilegesh is not forbidden, the Gro writes a very long piece where he completely disagrees with the second teaching of the Ramo to give a beating to one who marries with Pilegesh, and shows that the sin of Kedaisho is interpreted by the major authorities not as referring to Pilegesh but to other things especially a woman who is hefker to sleep with any man. But a Pilegesh married only to one man is permitted. He concludes his large list of proofs to this by referring us to the Beis Shmuel, who also brings with powerful proofs that Pilegesh is permitted. We thus conclude that the Vilna Gaon disagrees strongly with this opinion of Ramo, and as does the Beis Shmuel, that there is no proof to support the contention of the Ramo in this that the Rosh, Tur and Rambam forbade Pilegesh. And since the Vilna Gaon is considered a Rishon, and the Beis Shmuel is considered the senior authority of acharonim, we are left clearly with permission to make Pilegesh. The Chelkas Mechokake also strongly disagrees with the Ramo in this opinion that there is malkose for Pilegesh. Whereas the Ramo quotes the Rosh, Tur and Rambam that there is malkose for a Pilegesh, the Chelkas Mechokake says that the Rosh and the Tur never said there was malkose for a Pilegesh, only that a family could protest that somebody decided to be a Pilegesh instead of Kiddushin. Furthermore, the Rambam only says that one who takes a woman for zenuse is beaten, but Pilegesh is married to one man and thus surely does get Malkuse.
I want to comment on this Chelkas Mechokake, who says that the Rosh and Tur only say that a family may protest a member who takes Pilegesh. It is true that there is great importance given to a woman who takes Kiddushin who must have a ceremony with Kiddushin with proper witnesses and must have a Kesubo, otherwise she lives in sin. But Pilegesh has no ceremony such as Kiddushin or any other ceremony, only that two people may decide to marry, and the woman moves into the husband’s house, nothing more. Therefore, some people have the right to complain that a person refused Kiddushin and accepted Pilegesh. If so, why do I strongly recommend Pilegesh and not Kiddushin? Why, indeed, am I, today, and only today, very nervous about a woman who takes Kiddushin and not Pilegesh, although I know that very few people will take Pilegesh?
The answer is that in earlier generations, there were great rabbis who had control of the community. In the past generation my rebbe Rav Yosef Shalom Elyashev zt”l watched like a hawk what senior rabbis did and would act when something did not appeal to him. But today major rabbis do hideous things like forcing Gittin and some even permit women to remarry with no GET because they invent “fact” that there never was a proper marriage to begin with and that no GET is necessary. Today there is going to be a crisis of mamzerim, because Rambam says that any man who divorces his wife without a willingness but is forced to do it, that GET is worthless. If so, a child born from that GET is a mamzer. Rabbi Moshe Heinemann wrote a letter on the Internet urging everyone to give money to Ora, an organization that openly forces husbands to give his wife a GET because they believe that any man who doesn’t divorce his wife is wicked. This is against the Rambam, the Rashbo, and the Vilna Gaon and all of the authorities in Shulchan Aruch Even Hoezer 77 paragraphs 2 and 3. See also the Rashbo volume VII in teshuvose number 414, “if the husband wants to divorce, he divorces, if he doesn’t want to divorce, he doesn’t divorce.” The Rabbeinu Tam is quoted in the shita mekubetses[3], written by a rebbe of the Ari z”l, that it is forbidden [for Beth Din] to advise a husband that it would be nice to divorce his wife.
The opinion of Rabbein Tam and some others is that we may force a husband to divorce with passive pressure, meaning not to tell him to divorce, but if the husband is not told anything but simply ignored, and he realizes that it is because he doesn’t give a GET, that is passive pressure. The Shach at the end of his work Gevuras Anoshim quotes an authority that nobody ever heard of using passive pressure to force a GET. The reason is that in latter times creating a silent zone for a person is as bad as cursing him with Nidui or Cherem, which is forbidden when pursuing a GET unless the gemora clearly permits hitting with a stick to force the GET which requires a clear statement from the gemora. Thus today all passive coercion is forbidden.
However, there is a level other than passive pressure, which requires utter silence from people to create a level of silent-treatment, and that is mentioned in the end of chapter 154 in Shulchan Aruch Even Hoezer, regarding when it is permitted to force a husband to divorce his wife. Again, if the gemora says something that clearly requires beating the husband to divorce his wife, then he can be forced with a beating and other hideous things. But the gemora also suggests a much milder level of forcing a GET, by not using any force, by not insulting the husband as one who sins with not giving a GET to his wife, but by invoking a particular sin that the Beth Din knows was committed by the husband. The husband is thus told, “Wicked person, you violated the Torah law.” No talk about a GET, just reminding him of his wickedness.
This milder level also in the end of chapter 154 in Shulchan Aruch Even Hoezer, may only be applied when the husband committed a sin, but an ordinary husband who has not done a known sin may not be so insulted. What sin did he commit? This is not clearly stated in the Mishneh.
However, the Levush in Even Hoezer end of 154 as above develops this theme as follows and we quote: “Even though today we force nobody to divorce his wife [other than those mentioned clearly in 154] this means we don’t curse him with a cherem to force him to divorce his wife. But if in the eyes of Beth Din they see a way to help the woman, for instance she complains that the husband is disgusting to her, or similar things, and the marriage is not going nicely, then even if the husband is not a candidate to be forced to divorce his wife, the Beth Din may pronounce a curse of Cherem on every man and woman [in their community or wherever they feel it is appropriate] to decree with a severe curse that no man or woman may may speak to the husband, or to do business with him, to let him gain from the profit, or to give him food or drink, vilalvoso[4] or to visit him when he is sick, or other strict rules as they determine to make upon all people if the husband will not divorce his wife and free her with a kosher GET. Because this is not a forcing of the husband, because all he has to do is to go to a place where no Cherem has been declared on the husband, so nobody will stay away from him. And he gets no punishment from this curse [made on other people in the community, not on the husband]. And he receives no punishment. Because the curse falls not on him but on us if we don’t stay away from him. And there is not here any forced GET [because he was never forced to give a GET, but other people were forced to stay away from him which does not automatically make a forced GET].See Moharik chapter 120.”
It would seem from the end of the chapter 154 in Even Hoezer, that we are told various levels of dealing with forcing a GET. One, is when the Torah clearly states to force a GET even with a beating. Probably this permits also a curse and nidui, but this is not stated here in the Shulcan Aruch. Two, is when the husband is not told that he may be beaten, but is told that he sinned, something which is not explained. It cannot mean that he sinned by not giving a GET, because it is obvious that we are talking about a real sin whereas not giving a GET is usually not any kind of sin. However, look at the Teshuvose of the Ramo 96 at the end of the teshuva by Rav Eliezar Ashkenazi. He lists there various sins done by the husband which can trigger forcing a GET, but he advises first asking serious rabbis if they agree in each case.
This brings us to a totally new dimension in dealing with forcing a GET. The Shulchan Aruch Even Hoezer talks about people who must marry and have children, the law about a man or woman who don’t want to marry, or are married but they want to refrain from intimacy, or a variety of family problems. Sometimes, as mentioned in the above teshuva of Ramo 96, the rabbis looked for Torah scholars to be their partners to accept that the husband is obligated to do such and such or he must divorce his wife. But as is stated in the Ramo there, an individual rabbi must inquire from several major authorities if the sin of the husband, whatever it is, humiliating the wife by his behavior, or not having children because his wife refuses to be with him, or having to flee from the police and make the wife run after him and she refuses, all of these may, with the agreement of some great rabbis, bring about a situation where the husband is possibly forced to divorce his wife. But one rabbi on his own cannot do it and probably also a plain Beth without several senior rabbis cannot do it.
For our purposes, this is an extremely important thing. I without seeing the teshuva of Ramo anticipated it, that a husband in a house where there is no intimacy if the wife refuses it or the husband refuses it, may very well require the husband to realize he is living in sin. A husband who has no way to sleep with his wife, and therefore cannot have children, and who cannot marry another woman because having two wives is rejected in most communities, the husband can solve his problems and sins only by divorcing his wife and having children with another wife.
It may be as indicated in the Rambam about mous olei that Beth Din would try to solve this problem by instructing the husband how to behave with his wife so she will not refuse to have relations with him, and to assign a period where this should work. If that period comes, the Beth Din may insist on a divorce, if it has the proper authorities who agree with it.
We find in the beginning of the Shulchan Aruch Even Hoezer a discussion and various opinions about a person turning twenty who is not married and if he is not pursing marriage properly, whether he can be forced to marry or not.
We also have a question if the husband causes his wife great shame if that itself is cause to force him to divorce her. Again, great rabbis must agree to force him. Thus, again, the families that are broken and the husband has no marital relations with the wife even if he has a boy and a girl but does not have more children because his wife is refusing to go near him in marital relations, may have to give her a GET, again if senior rabbis agree that this is the halacha.
One things here is for sure. We cannot talk on paper here about who should do this or that, but senior rabbis must decide, a proper Beth Din, etc. But we can bring it to the attention of everyone that these things are all sins, to humiliate a wife or force her to chase after the husband because he can’t live in her neighborhood, or really anything the husband does that makes the wife miserable, and senior rabbis consider it a serious problem, they, in concert with senior authorities, may demand a GET, or they may simply tell him that he is living in sin, and will face punishment in this world and the next. Maybe that will help. And if it does not, the Beth Din or senior rabbis must bring the husband to a meeting and make him realize his obligations, however that works out, hopefully when the problem is somehow mitigated.
Another thing, it is obvious from the above Levush that a husband who is being ostracized to make a passive pressure to divorce his wife, and the husband is constantly surrounded by people who won’t talk to him, that this may result in an invalid GET, unless the husband can find a community where people will talk to him. This is the Levush that we mention above. But according to this, if people will not talk to him although they do nothing else and never mention the word GET to him, it would seem that the pain he has from being ostracized makes an invalid GET. It could be that ostracizing is an act of forcing a GET which makes the GET forced and invalid. Whatever, we find the Levush, Gro and Moharik demand that the husband surrounded by people who won’t talk to him and gives a GET to save himself, may have given an invalid GET.
The question is how this fits in with the Shach in Gevuras Anoshim, who writes that when everyone ostracizes the husband it is like cursing the husband and forcing a GET which is wrong. But what does the Shach say if some people don’t ostracize the husband but they live far away? That may be a problem. And if the husband can find a place to live with companionship but the wife doesn’t want to live there, but wants to remain where she always lived, near her family, for instance, and if the woman cannot be forced to move somewhere the husband needs because he can’t live near his wife, this itself may force the husband to give his wife a divorce.
Basically, when the wife is miserable living with the husband there can be big problems that may have to be solved with a GET. But if the husband is stubborn and does not want to give his wife a GET, only senior rabbis can decide that the pain of the wife has reached the point the husband must give her a GET willingly.
Some Questions
What is not clear from the gemora is the following: A person who commits a capital crime that requires death is only punished this way if he was warned and violated the warning and if the warning was done by two male kosher religious witnesses. What, therefore, is the status of a husband who qualifies either for a beating to divorce his wife or for a humiliation for committing a sin? Does he also require a warning from two kosher witnesses and does he too have to defy the warning that he will be punished for that or not?
A more difficult question is as follows. If a person lives among deeply religious people and defies the Sabbath, we understand that he, if warned and violates the warning, deserves his fate. What, however, happens when a person lives in a time where everybody is not religious, or many people are not religious, and this person comes from a family where people for generations were not religious? Does strong punishment still apply there? That I don’t know. Such people may have the status of shogage or inadvertent sinners and not be considered guilty at least not at the level that serious punishment requires.
The Vilna Gaon in Shulchan Aruch Even Hoezer end of chapter 154 says that the issuing of punishment for a husband who sinned and who does not divorce his wife only applies if the husband could escape to a place where nobody will pursue him. And this is how the Levush and Maharik rule.
But the Shach at the end of Gevuras Anoshim brings an opinion that nobody ever heard of forcing a GET with passive pressure, because today it is considered as terrible as a curse of Nidui and Cherem. So the Shach says we should not use it today. Also, the Vilna Gaon and the Morahik say that the Shulchan Aruch at the end of chapter 154 in Even Hoezer says that only rarely may we force a GET and there are two kinds of force. One, a beating, when one does a very serious sin like marrying a woman forbidden to him. Two, when the gemora does not suggest physically forcing him at all, but merely to say orally to him that he is a sinner because he did sin x or y, a Torah sin or a rabbinical sin. But to go around like ORA forcing a husband with public humiliations that are worse than murder in Rabbeinu Yona[5], is surely a forced GET that is worthless, as the Rambam says. Rabbeinu Yona says that to humiliate a person is worse than murdering him, and that one who humiliates a person in public who goes down to Gehenum and never comes up, and he has no portion in the world to come. This is all what happens when ORA humiliates a husband to force a GET.
That is why today, when the style seems to be for rabbis to invent a new Torah to force a GET and even not to give a GET at all, and there will be a crisis of mamzerim, I strongly advise people to consider marrying with Pilegesh, because even if it is somehow less than regular Kiddushin as it does not have Kiddushin or Kesubo, it also does not have mamzerim, and that, to me, is the main issue.
I wish to conclude by saying that I agree with the Gaon Rav Yaacov Emden that one who marries with Pilegesh may do so, but should be guided by rabbis exactly how to maintain themselves. Yes, technically two people can marry with Pilegesh, but without constant rabbinical supervision and guidance for Pilegesh people to succeed is a different story. Also, there are perhaps certain leniencies in Pilegesh not available in regular marriage, but I would personally not have interest in helping people use these leniencies, because leniencies can damage peoples’ respect for Pilegesh. And this is likely a factor in what the Chelkas Mechokake says that some people protest when a family member marries with Pilegesh. But people who marry one on one a husband and a wife with Pilegesh, I say, kol hakode, but again, only if there are rabbis preferably from the community to guide them and to stand up for them that they are fine people and following the Torah.
But the Beis Shmuel here explains that he disagrees with this Ramo. He maintains that there is no proof to say that Pilegesh is a sin that requires a beating. After a lengthy discussion of open opinions of the greatest authorities he concludes that one who takes a Pilegesh is not beaten and that there is no proof that Pilegesh is even a sin. When we realize that a great Gaon Reb Shalom Mordechai HaCohen, grandfather of the famous Israeli mashgiach Rav Shalom Mordechai haCohen, writes that Jews always accept the opinion of the Beis Shmuel, this carries a great weight to be lenient with Pilegesh, and to accept the teaching of the first opinion in Ramo that Pilegesh is permitted, as the Vilna Gaon writes that this is the opinion of the Ramban, Rambam and the gemora in Sanhedrin 21A.
On this teaching of the Ramo to forbid Pilegesh that the Beis Shmuel disagrees that Pilegesh is not forbidden, the Gro writes a very long piece where he completely disagrees with the second teaching of the Ramo to give a beating to one who marries with Pilegesh, and shows that the sin of Kedaisho is interpreted by the major authorities not as referring to Pilegesh but to other things especially a woman who is hefker to sleep with any man. But a Pilegesh married only to one man is permitted. He concludes his large list of proofs to this by referring us to the Beis Shmuel, who also brings with powerful proofs that Pilegesh is permitted. We thus conclude that the Vilna Gaon disagrees strongly with this opinion of Ramo, and as does the Beis Shmuel, that there is no proof to support the contention of the Ramo in this that the Rosh, Tur and Rambam forbade Pilegesh. And since the Vilna Gaon is considered a Rishon, and the Beis Shmuel is considered the senior authority of acharonim, we are left clearly with permission to make Pilegesh. The Chelkas Mechokake also strongly disagrees with the Ramo in this opinion that there is malkose for Pilegesh. Whereas the Ramo quotes the Rosh, Tur and Rambam that there is malkose for a Pilegesh, the Chelkas Mechokake says that the Rosh and the Tur never said there was malkose for a Pilegesh, only that a family could protest that somebody decided to be a Pilegesh instead of Kiddushin. Furthermore, the Rambam only says that one who takes a woman for zenuse is beaten, but Pilegesh is married to one man and thus surely does get Malkuse.
I want to comment on this Chelkas Mechokake, who says that the Rosh and Tur only say that a family may protest a member who takes Pilegesh. It is true that there is great importance given to a woman who takes Kiddushin who must have a ceremony with Kiddushin with proper witnesses and must have a Kesubo, otherwise she lives in sin. But Pilegesh has no ceremony such as Kiddushin or any other ceremony, only that two people may decide to marry, and the woman moves into the husband’s house, nothing more. Therefore, some people have the right to complain that a person refused Kiddushin and accepted Pilegesh. If so, why do I strongly recommend Pilegesh and not Kiddushin? Why, indeed, am I, today, and only today, very nervous about a woman who takes Kiddushin and not Pilegesh, although I know that very few people will take Pilegesh?
The answer is that in earlier generations, there were great rabbis who had control of the community. In the past generation my rebbe Rav Yosef Shalom Elyashev zt”l watched like a hawk what senior rabbis did and would act when something did not appeal to him. But today major rabbis do hideous things like forcing Gittin and some even permit women to remarry with no GET because they invent “fact” that there never was a proper marriage to begin with and that no GET is necessary. Today there is going to be a crisis of mamzerim, because Rambam says that any man who divorces his wife without a willingness but is forced to do it, that GET is worthless. If so, a child born from that GET is a mamzer. Rabbi Moshe Heinemann wrote a letter on the Internet urging everyone to give money to Ora, an organization that openly forces husbands to give his wife a GET because they believe that any man who doesn’t divorce his wife is wicked. This is against the Rambam, the Rashbo, and the Vilna Gaon and all of the authorities in Shulchan Aruch Even Hoezer 77 paragraphs 2 and 3. See also the Rashbo volume VII in teshuvose number 414, “if the husband wants to divorce, he divorces, if he doesn’t want to divorce, he doesn’t divorce.” The Rabbeinu Tam is quoted in the shita mekubetses[3], written by a rebbe of the Ari z”l, that it is forbidden [for Beth Din] to advise a husband that it would be nice to divorce his wife.
The opinion of Rabbein Tam and some others is that we may force a husband to divorce with passive pressure, meaning not to tell him to divorce, but if the husband is not told anything but simply ignored, and he realizes that it is because he doesn’t give a GET, that is passive pressure. The Shach at the end of his work Gevuras Anoshim quotes an authority that nobody ever heard of using passive pressure to force a GET. The reason is that in latter times creating a silent zone for a person is as bad as cursing him with Nidui or Cherem, which is forbidden when pursuing a GET unless the gemora clearly permits hitting with a stick to force the GET which requires a clear statement from the gemora. Thus today all passive coercion is forbidden.
However, there is a level other than passive pressure, which requires utter silence from people to create a level of silent-treatment, and that is mentioned in the end of chapter 154 in Shulchan Aruch Even Hoezer, regarding when it is permitted to force a husband to divorce his wife. Again, if the gemora says something that clearly requires beating the husband to divorce his wife, then he can be forced with a beating and other hideous things. But the gemora also suggests a much milder level of forcing a GET, by not using any force, by not insulting the husband as one who sins with not giving a GET to his wife, but by invoking a particular sin that the Beth Din knows was committed by the husband. The husband is thus told, “Wicked person, you violated the Torah law.” No talk about a GET, just reminding him of his wickedness.
This milder level also in the end of chapter 154 in Shulchan Aruch Even Hoezer, may only be applied when the husband committed a sin, but an ordinary husband who has not done a known sin may not be so insulted. What sin did he commit? This is not clearly stated in the Mishneh.
However, the Levush in Even Hoezer end of 154 as above develops this theme as follows and we quote: “Even though today we force nobody to divorce his wife [other than those mentioned clearly in 154] this means we don’t curse him with a cherem to force him to divorce his wife. But if in the eyes of Beth Din they see a way to help the woman, for instance she complains that the husband is disgusting to her, or similar things, and the marriage is not going nicely, then even if the husband is not a candidate to be forced to divorce his wife, the Beth Din may pronounce a curse of Cherem on every man and woman [in their community or wherever they feel it is appropriate] to decree with a severe curse that no man or woman may may speak to the husband, or to do business with him, to let him gain from the profit, or to give him food or drink, vilalvoso[4] or to visit him when he is sick, or other strict rules as they determine to make upon all people if the husband will not divorce his wife and free her with a kosher GET. Because this is not a forcing of the husband, because all he has to do is to go to a place where no Cherem has been declared on the husband, so nobody will stay away from him. And he gets no punishment from this curse [made on other people in the community, not on the husband]. And he receives no punishment. Because the curse falls not on him but on us if we don’t stay away from him. And there is not here any forced GET [because he was never forced to give a GET, but other people were forced to stay away from him which does not automatically make a forced GET].See Moharik chapter 120.”
It would seem from the end of the chapter 154 in Even Hoezer, that we are told various levels of dealing with forcing a GET. One, is when the Torah clearly states to force a GET even with a beating. Probably this permits also a curse and nidui, but this is not stated here in the Shulcan Aruch. Two, is when the husband is not told that he may be beaten, but is told that he sinned, something which is not explained. It cannot mean that he sinned by not giving a GET, because it is obvious that we are talking about a real sin whereas not giving a GET is usually not any kind of sin. However, look at the Teshuvose of the Ramo 96 at the end of the teshuva by Rav Eliezar Ashkenazi. He lists there various sins done by the husband which can trigger forcing a GET, but he advises first asking serious rabbis if they agree in each case.
This brings us to a totally new dimension in dealing with forcing a GET. The Shulchan Aruch Even Hoezer talks about people who must marry and have children, the law about a man or woman who don’t want to marry, or are married but they want to refrain from intimacy, or a variety of family problems. Sometimes, as mentioned in the above teshuva of Ramo 96, the rabbis looked for Torah scholars to be their partners to accept that the husband is obligated to do such and such or he must divorce his wife. But as is stated in the Ramo there, an individual rabbi must inquire from several major authorities if the sin of the husband, whatever it is, humiliating the wife by his behavior, or not having children because his wife refuses to be with him, or having to flee from the police and make the wife run after him and she refuses, all of these may, with the agreement of some great rabbis, bring about a situation where the husband is possibly forced to divorce his wife. But one rabbi on his own cannot do it and probably also a plain Beth without several senior rabbis cannot do it.
For our purposes, this is an extremely important thing. I without seeing the teshuva of Ramo anticipated it, that a husband in a house where there is no intimacy if the wife refuses it or the husband refuses it, may very well require the husband to realize he is living in sin. A husband who has no way to sleep with his wife, and therefore cannot have children, and who cannot marry another woman because having two wives is rejected in most communities, the husband can solve his problems and sins only by divorcing his wife and having children with another wife.
It may be as indicated in the Rambam about mous olei that Beth Din would try to solve this problem by instructing the husband how to behave with his wife so she will not refuse to have relations with him, and to assign a period where this should work. If that period comes, the Beth Din may insist on a divorce, if it has the proper authorities who agree with it.
We find in the beginning of the Shulchan Aruch Even Hoezer a discussion and various opinions about a person turning twenty who is not married and if he is not pursing marriage properly, whether he can be forced to marry or not.
We also have a question if the husband causes his wife great shame if that itself is cause to force him to divorce her. Again, great rabbis must agree to force him. Thus, again, the families that are broken and the husband has no marital relations with the wife even if he has a boy and a girl but does not have more children because his wife is refusing to go near him in marital relations, may have to give her a GET, again if senior rabbis agree that this is the halacha.
One things here is for sure. We cannot talk on paper here about who should do this or that, but senior rabbis must decide, a proper Beth Din, etc. But we can bring it to the attention of everyone that these things are all sins, to humiliate a wife or force her to chase after the husband because he can’t live in her neighborhood, or really anything the husband does that makes the wife miserable, and senior rabbis consider it a serious problem, they, in concert with senior authorities, may demand a GET, or they may simply tell him that he is living in sin, and will face punishment in this world and the next. Maybe that will help. And if it does not, the Beth Din or senior rabbis must bring the husband to a meeting and make him realize his obligations, however that works out, hopefully when the problem is somehow mitigated.
Another thing, it is obvious from the above Levush that a husband who is being ostracized to make a passive pressure to divorce his wife, and the husband is constantly surrounded by people who won’t talk to him, that this may result in an invalid GET, unless the husband can find a community where people will talk to him. This is the Levush that we mention above. But according to this, if people will not talk to him although they do nothing else and never mention the word GET to him, it would seem that the pain he has from being ostracized makes an invalid GET. It could be that ostracizing is an act of forcing a GET which makes the GET forced and invalid. Whatever, we find the Levush, Gro and Moharik demand that the husband surrounded by people who won’t talk to him and gives a GET to save himself, may have given an invalid GET.
The question is how this fits in with the Shach in Gevuras Anoshim, who writes that when everyone ostracizes the husband it is like cursing the husband and forcing a GET which is wrong. But what does the Shach say if some people don’t ostracize the husband but they live far away? That may be a problem. And if the husband can find a place to live with companionship but the wife doesn’t want to live there, but wants to remain where she always lived, near her family, for instance, and if the woman cannot be forced to move somewhere the husband needs because he can’t live near his wife, this itself may force the husband to give his wife a divorce.
Basically, when the wife is miserable living with the husband there can be big problems that may have to be solved with a GET. But if the husband is stubborn and does not want to give his wife a GET, only senior rabbis can decide that the pain of the wife has reached the point the husband must give her a GET willingly.
Some Questions
What is not clear from the gemora is the following: A person who commits a capital crime that requires death is only punished this way if he was warned and violated the warning and if the warning was done by two male kosher religious witnesses. What, therefore, is the status of a husband who qualifies either for a beating to divorce his wife or for a humiliation for committing a sin? Does he also require a warning from two kosher witnesses and does he too have to defy the warning that he will be punished for that or not?
A more difficult question is as follows. If a person lives among deeply religious people and defies the Sabbath, we understand that he, if warned and violates the warning, deserves his fate. What, however, happens when a person lives in a time where everybody is not religious, or many people are not religious, and this person comes from a family where people for generations were not religious? Does strong punishment still apply there? That I don’t know. Such people may have the status of shogage or inadvertent sinners and not be considered guilty at least not at the level that serious punishment requires.
The Vilna Gaon in Shulchan Aruch Even Hoezer end of chapter 154 says that the issuing of punishment for a husband who sinned and who does not divorce his wife only applies if the husband could escape to a place where nobody will pursue him. And this is how the Levush and Maharik rule.
But the Shach at the end of Gevuras Anoshim brings an opinion that nobody ever heard of forcing a GET with passive pressure, because today it is considered as terrible as a curse of Nidui and Cherem. So the Shach says we should not use it today. Also, the Vilna Gaon and the Morahik say that the Shulchan Aruch at the end of chapter 154 in Even Hoezer says that only rarely may we force a GET and there are two kinds of force. One, a beating, when one does a very serious sin like marrying a woman forbidden to him. Two, when the gemora does not suggest physically forcing him at all, but merely to say orally to him that he is a sinner because he did sin x or y, a Torah sin or a rabbinical sin. But to go around like ORA forcing a husband with public humiliations that are worse than murder in Rabbeinu Yona[5], is surely a forced GET that is worthless, as the Rambam says. Rabbeinu Yona says that to humiliate a person is worse than murdering him, and that one who humiliates a person in public who goes down to Gehenum and never comes up, and he has no portion in the world to come. This is all what happens when ORA humiliates a husband to force a GET.
That is why today, when the style seems to be for rabbis to invent a new Torah to force a GET and even not to give a GET at all, and there will be a crisis of mamzerim, I strongly advise people to consider marrying with Pilegesh, because even if it is somehow less than regular Kiddushin as it does not have Kiddushin or Kesubo, it also does not have mamzerim, and that, to me, is the main issue.
I wish to conclude by saying that I agree with the Gaon Rav Yaacov Emden that one who marries with Pilegesh may do so, but should be guided by rabbis exactly how to maintain themselves. Yes, technically two people can marry with Pilegesh, but without constant rabbinical supervision and guidance for Pilegesh people to succeed is a different story. Also, there are perhaps certain leniencies in Pilegesh not available in regular marriage, but I would personally not have interest in helping people use these leniencies, because leniencies can damage peoples’ respect for Pilegesh. And this is likely a factor in what the Chelkas Mechokake says that some people protest when a family member marries with Pilegesh. But people who marry one on one a husband and a wife with Pilegesh, I say, kol hakode, but again, only if there are rabbis preferably from the community to guide them and to stand up for them that they are fine people and following the Torah.
[1] Shulchan Aruch Even Hoezer laws of Kiddushin 26:1. Ramo there explains that the Shulchan Aruch feels that if a man and woman marry with intent to marry without witnesses and without Kiddushin, we force them to separate. The Ramo explains because we fear that the couple who married without rabbis or witnesses will be embarrassed to go to the Mikva and thus will sin with Nida. But if the couple married with the knowledge of rabbonim who supervise the couple to obey all of the commands, including Mikvah, then Pilegesh is permitted. The Vilna Gaon provides proof for this to permit Pilegesh from gemora Sanhedrin 21A that “general marriage requires Kiddushin and Kesubo and Pilegesh requires neither Kiddushin or Kesubo.” The Vilna Gaon says that the understanding is that the Pilegesh has no obligation to make a Kiddushin or Kesubo. Nothing is mentioned about a GET, but major poskim say that no GET is required when the wife or husband wishes to end the marriage. Thus, the level of Pilegesh has nothing in the gemora that would obligate a Pilegesh, other than for the husband to provide his wife with a domicile in his house and for her to be faithful to him and not deal with other men with zenuse. If she does, she must leave his house and break up the marriage.
[2] Meyuchesses means that the Rashbo had many volumes filled with his teshuvose. But one of these volumes clearly had teshuvose signed by the Ramban. There the Ramban encourages Pilegesh and says that the Rambam permits it as long as it is not zenuse. We understand from the Ramban that the Rambam in Melochim who permits Pilegesh only for a king is talking about a person who takes a Pilegesh who will sleep with other men not her husband, as zenuse. But if she marries somebody as a real marriage, as was done by many people mentioned in Tanach, nothing is wrong. But if done derech Zenuse, a king may do it, we assume that nobody will go near the wife of a king, even if she does not accept the bonds of marriage. If the king, for instance, takes a very beautiful woman against her will, this is not a normal marriage, but is derech Zenuse, but nobody will antagonize the king and do anything about it. At any rate, the Ramban permits Pilegesh, as long with the Vilna Gaon and the Ramo, and the Vilna Gaon says that the Rambam agreed. If so, we must explain the Rambam’s opposition to Pilegesh for one who is not a king as referring to a woman who did not join in marriage with her husband in the style of true marriage, but was taken by a person for her beauty or whatever reason, and because the marriage was forced, only a king may do such a thing.
[3] Shita Mekubetses Kesubose 64b page 1190 in my edition phrase beginning וכתב רבינו יונה ז"ל וזה לשונו
[4] The word in Hebrew is ללוותו probably means to walk with him
[5] See Shaarei Teshuva of Rabbeinu Yona number 139, 140, 141.
[5] See Shaarei Teshuva of Rabbeinu Yona number 139, 140, 141.
