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We therefore rule in accordance with the opinion that the halakhot that apply to the rebellious wife due to her husband being repulsive to her also apply when the wife claims that she no longer wishes to live together with her husband. | {
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2. The evidence required to prove the plea, "he is repulsive to me" | {
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Although several decisors are of the opinion that accepting the claim, "he is repulsive to me" is conditional upon evidence being brought in relation to the cause of the revulsion, 27 Beit ha-Behirah, Ketuvot 63b, in the name of Rambam; Teshuvot Maharit , EH 40; Teshuvot Divrei Malkiel 3:145; Hazon Ish , EH 79:16; File no. 992236/1, Beit Din ha-Rabbani ha-Gadol, 5.17.2015. many authorities opine that there is no need for admissible proof for this purpose, and it is sufficient that her revulsion is evident from what she says, from the circumstances, 28 Tosafot, Ketuvot 63b, s.v. aval – "Where there is a basis [for saying] that the husband is intolerable to her"; Teshuvot ha-Rashba , cited in Beit Yosef , Tur EH 77, s.v. uma she'amar she'Rabbi Meir ; Teshuvot Maharimat 2, EH 40. See also Teshuvot Yabia Omer 3, EH 18:2. or if she presents an explanation, a clear pretext ( amatla mevureret ), for her claim that he is repulsive to her. 29 Tosafot ha-Rid, Ketuvot 64a; Teshuvot ha-Rosh 43:8 in the name of Maharam of Rothenberg; Teshuvot Tashbetz 4 ( ha-Hut ha-Meshullash ) 3:35; Teshuvot ha-Rashbash 93. Lest one argue that one cannot rely upon Rashbash's ruling since it was offered in theory ( le-halakhah ) and not in practice ( le'ma'aseh ), nonetheless numerous decisors understand that one can coerce a get even in accordance with Rashbash. See Teshuvot Seder Eliyahu Rabbah 13; Teshuvot Maharmit EH 40; Teshuvot Shoeil u-Meishiv, Tlita'ah 1:350; Mishkenot Ya'akov . Ma'arekhet 40, 229. There are indeed those who argue that there is no requirement for any explanation on the part of the wife, 30 Teshuvot ha - Rashba ha-Meyuhasot le-Ramban 138; Teshuvot Pri Tzedek of Rabbi Raphael Tzror, 2, in the opinion of several early authorities, Rishonim . a position which is not reflective of normative Halakhah . | {
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The majority of authorities are of the opinion that it is not sufficient simply to provide some sort of explanation for the claim, "he is repulsive to me," and what is necessary, according to them, is a "clear pretext." 31 Teshuvot Tashbetz 4 ( ha-Hut ha-Meshullash ) 3:35; Rema , SA EH 77:3, and the super-commentaries; Teshuvot Yabia Omer 3, EH 18:3–4; PDR 16:145. | {
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The assumption is that despite the emotional/psychological aspect of the claim "he is repulsive to me," the wife who is suffering has the ability to express her feelings in a rational fashion in front of the beit din by explaining the source or the reason for these feelings with a "clear pretext," and the beit din must determine whether there is a true, justified ground for divorce. | {
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3. Discretion of the beit din in accepting the claim, "he is repulsive to me" | {
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In fact, determination of whether the "clear pretext" is sufficiently strong to activate the halakhot of the rebellious wife whose husband is repulsive to her, is subject to the discretion of the beit din , in accordance with "what the rabbinic arbitrators ( dayanim ) discern for themselves" in order to assess the sincerity of the claim that the husband is in fact repulsive. 32 Tosafot Rid, Ketuvot 64a ; Teshuvot Hut ha-Meshullash 2; Bah, Tur SA EH 77:2; Rema SA EH 77:3; Helkat Mehokeik, SA EH 70:42, 77:25; Beit Shmuel, SA EH 77:27, Beit Shmuel , Dinei Moredet (77) 3; (Cf. Beit Shmuel SA EH 77:33 – See Ba'al Hagahat Lishkat ha-Soferim ); Teshuvot Mahaneh Ephraim EH 126; Hazon Ish, EH 69:16; PDR 3:201, 206–207; 20:197, 200. | {
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In other words, the beit din must believe that the wife is making the claim for real, relevant reasons, rather than as a trick or a tactic because "she had cast her eyes on another." 33 Beit ha-Behirah, Ketuvot 63a; Teshuvot ha-Rosh 43:6. Thus, for example, if the woman waives collecting the value of her ketubah , the sincerity of her claim has a stronger foundation. 34 Teshuvot Maharit 2, EH 40; Hazon Ish , EH 79:4. | {
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In his clear and articulate style, Rabbi Kook defines the nature of the "clear pretext" as part of the investigation conducted by the beit din : 35 Teshuvot Ezrat Kohen 56. | {
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Where it is clear to the beit din that justice is on her side and he deserves, by his improper actions and practices, that she would be repulsed by him . . . that he caused everything. | {
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Rabbi Shlomo Daichovsky explains the contours of the discretion of the beit din in determining that he is repulsive. The following excerpt of his beit din ruling 36 File no. 168/54, Beit Din ha-Rabbani ha-Gadol, 14 Kislev 5755 (unpublished opinion): a summary of the judgment was published in ha-Din veha-Dayan 2, 3 (5763). is quoted by Israel's High Court of Justice, a civil tribunal: 37 HC 1371/96 Miriam Refaeli v. Yosef Refaeli Israel SC 51 (1) 198 (4.20.1997) para. 17. | {
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The need for a clear pretext in relation to one who says, "he is repulsive to me" is not because such a claim without a pretext is not sufficient, but because in such a case we are concerned that she might have cast her eyes on another. But as long as her revulsion is clear in the eyes of the beit din , even if it is not justified, the woman is considered as saying, "he is repulsive to me" with a clear pretext, and as Hazon Ish said (Even ha-Ezer 69:16): "The main thing depends on the impression of the beit din , if there is mean-spiritedness in her demanding her ketubah , but if her claim that "he is repulsive to me" appears to be sincere, but she is demanding her ketubah in order to support herself, she will not lose her claim. | {
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Rabbi Eliyahu Bakshi-Doron adds: 38 File no. 168/54, as cited in the High Court, supra n. 37. | {
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Even those who disagree with Rambam that a get is to be compelled when there is a claim of revulsion, agree that if there is a clear pretext, and the claim is sincere and no concern arises that she has cast her eyes on another, the divorce is to be compelled. | {
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In the present case, according to the impression of the panel of the Beit Din , the plaintiff claims that the husband is repulsive to her with a clear pretext as established by her words and the findings of the civil court, and given that she has not cast her eyes at another man and is not claiming the value of her ketubah, he may therefore be compelled to give her a get . 39 Sefer Meisharim 23:8; Teshuvot Mahari Bruna 211; Rashbash , supra n. 29; Teshuvot Yakhin u-Boaz 2:21, in the name of Maharam; Teshuvot Maharshal 41; Teshuvot Rema 26, 96; Teshuvot Tzitz Eliezer 17:53. | {
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Alternatively, in this case, we can deploy the principle of double doubt, comprised in this case of three halakhic doubts, understood in the manner of "if you choose to say": 40 Noseh ha-Ephod and Rabbi O. Yosef employ, albeit in a different fact pattern, the same series of doubts to arrive at the conclusion of get coercion. See Teshuvot Noseh ha-Ephod 32 and Teshuvot Yabia Omer 3, EH 18 (4). Should you choose to say that normative Halakhah accords with Rambam and others that in the wake of a plea of repulsion without a clear pretext, we can coerce a get. And should you choose to say that there is only a basis to compel a get if the plea is accompanied by a clear pretext ( amatla mevureret ), given such a pretext one can coerce a get . And should you choose to say that even under such conditions there are no grounds for get coercion, we follow in the footsteps of Alfasi and others who mandate a compulsion order due to the rabbinic legislation passed in the Geonic times that directs and coerces a get . 41 Teshuvot ha-Rashba 6:72 in the name of Alfasi; Teshuvot Mahari ibn Lev 3:13 in the name of Alfasi. For the aforementioned doubts regarding get compulsion based upon a plea of repulsiveness, see Teshuvot Osher Hanan 4, EH 77(10); Teshuvot Yabia Omer 3, EH 18(4). Based upon the foregoing, in pursuance to some contemporary authorities there is a double halakhic doubt in biblical matters concerning the different planes of the plea of repulsiveness which permits us to void the marriage in our case. 42 See Rabbi Y. Goldberg, Elu She-kofin Le-Hotzi , Yerushalayim 5773, 50–51, 131, n. 8; File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013. See supra chapter 3, in particular n. 45 (end). Alternatively, we may advance an additional double halakhic doubt in our case which would result in voiding the marriage. The first doubt is that there is a debate whether one may coerce a get based upon a plea of repulsion. Moreover, there is a second doubt whether one may coerce a get concerning a particular ground for divorce. For example, in our scenario if the husband is physically abusive to his spouse, we encountered that there is a debate whether a get may be coerced. Based upon this double halakhic doubt one may coerce a get . See Teshuvot Heikhal Yitzhak EH 1:3 (15); PDR 15:145, 153. | {
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Seemingly, such a construction of a double halakhic uncertainty runs afoul of the requirement that each doubt must be expressed by formulating each side of each doubt (" mit'hapekh "). 43 Teshuvot ha-Rivash 192; Teshuvot Divrei Emet 6 (end). In other words, in our example, the first doubt was whether to follow Rambam regarding a wife's plea of being repulsed by her husband alone, where according to Rabbeinu Tam and Rosh we are proscribed from get coercion in such a case. However, other legists demur and contend that there is no such requirement, and simply stating, "if you choose to say that we follow Rambam's view which mandates get coercion" is sufficient. 44 Pri Hadash YD 110; Teshuvot Kol Eliyahu YD 20; Teshuvot Hikrei Lev , 1 YD 126; Teshuvot Maharmit YD 1. And clearly in a case of three doubts, there is no such prerequisite prior to employing the principle of a double halakhic doubt. 45 Teshuvot Hikrei Lev , 1 YD 9; Sedei Hemed ha-Shalem , Ma'arkhet Samekh , Kelalim 22–23. | {
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C. "Oveir al dat yehudit" – a person who acts contrary to Jewish practice | {
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As opposed to the halakhah governing "transgressing Jewish law" (" oveir al dat Moshe ") which deals with a husband who causes his wife to violate prohibitions such as engaging in conjugal relations during her menstrual period (a niddah ), a husband who acts improperly towards his wife, e.g., he hits her, physically or emotionally abuses her, is defined by the Halakhah as one who "acts contrary to Jewish practice," that is, he deliberately flouts the divine commandments ( mitzvot ). 46 Rema , EH 154:3; Arukh ha-Shulhan EH 154:17; Piskei Din Rabbanayim (hereinafter: PDR ) 6:221–222; 11:327. Clearly, raising one's hand to strike a fellow-Jew, much less assaulting him, is a halakhic infraction. 47 Devarim 25:3; Sanhedrin 58b; MT Hovel u-Mazik 5:1. Moreover, one must respect the dignity of one's wife and one is prohibited from striking her. 48 Rema, SA EH 154:3. See further this writer's Rabbinic Authority , vol. 2, 81–101. As an Israeli rabbinical court states in eloquent terms: 49 File no. 4927-21-1, Petah Tikvah Regional Beit Din, 6 Tishrei 5765. | {
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A wife is not the acquisition of her husband, "for life she is given and not for pain". There is no place for distinguishing between a wife and a friend . . . On the contrary, in the relation to one's wife, a husband is obligated to love her and respect her more than the duty concerning his friend. | {
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Furthermore, as Rambam opines: 50 MT, Hovel u-Mazik 5:1–2. | {
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Anyone who assaults an honest ( kasher ) individual of Israel, whether he is a minor or of majority age . . . in a disrespectful fashion ( derek nitzayon ), violates a negative commandment . . . and one who lifts his hand, even though he has not hit him, is wicked. | {
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Abusive behavior towards children, whether by a parent or third party, is outlawed. 51 Teshuvot Sho'eil u-Meishiv, Mahadura Kama 1:185; Teshuvot Maharashdam YD 141; Teshuvot Hikrei Lev , YD 47. See further this writer's Rabbinic Authority , vol. 2, 101–109, 118–147. | {
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In the present case, the defendant suffered from fits of rage, which, according to the plaintiff, caused him to abuse her, as well as their own children, both physically and emotionally. | {
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Prima facie , this behavior is not an example of a husband who is acting contrary to Jewish practice. The following question is raised in relation to a wife who acts contrary to Jewish practice (" overet al dat Yehudit" ): A wife, following a fight, ran outside and shouted at her husband that he was a member of a sect and she saw him practicing idolatry with his worker and once with his son, and word of this rang out in front of many non-Jews and Jews. In the course of doing this, her head became uncovered and her arms were bared, and she also hired a non-Jew to approach the authorities in order to burn her husband for this reason. | {
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Rashba responds: 52 Beit Yosef, Tur EH 115 in the name of Teshuvot ha - Rashba 1:571; Helkhat Mehokeik , SA EH 115:11; Beit Shmuel , ibid ., 11; Beit Meir, ibid . | {
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Regarding their ordering her to divorce without receiving her ketubah – this is based on the rule of one who violates the halakhah and acts contrary to Jewish practice in the context of one who uncovered her head and her arms . . . This referred only to one who was in the habit of doing so, but in relation to one who just happened to uncover her head, or who conversed once with the fellows by chance, then of course she does not lose her ketubah . . . and moreover this was in the heat of anger, and in the heat of anger it is as if she is insane, and G‑d and His mitzvot are not with her (absence of a willingness to fulfill mitzvot - AYW) at that time. | {
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In other words, if it is possible to explain that the wife's outburst was caused by her emotional state, and not due to the commission of an offence in a deliberate and disrespectful manner, she will not be defined as transgressing "Jewish practice," as Rashba observes: "in the heat of anger it is as if she were insane, and G‑d and His mitzvot are not with her at that time." | {
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The halakhah of "acting contrary to the practice" in relation to a husband was not mentioned in the Talmud; however, on the basis of the authorities who hold that the same halakhah applies to both a male and a female who act contrary to Jewish practice, 53 Tosafot ha-Rid, Ketuvot 72a, s.v. noderet ; Teshuvot Noda be-Yehudah , Mahadura Tinyana, 91. For the halakhah of overet al dat Yehudit concerning a wife , see SA EH 115:4, Rema , ad locum; Beit Shmuel , ad locum 9–16; Helkat Mehokeik , ad locum 9–15. Rashba's view in relation a wife who acts contrary to Jewish practice can be applied in the case before us, in which it is the husband who acts contrary to Jewish practice. If so, in our case, in which the abusive acts were caused by anger and aggression and nothing else, and at those times the defendant did not have G‑d in mind and consequently is not held liable, the result is that the defendant is not subject to the halakhah of one who acts contrary to Jewish practice on account of his outbursts. | {
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In other words, we must examine whether the acts of physical and emotional abuse of the defendant constitute deliberate, contemptuous acts contrary to Jewish practice on the part of the husband, in which case he is to be compelled to give a get , or whether the defendant falls into the category of an insane person in relation to these acts and is not accountable, for it is as if he is under duress (" ones "), 54 MT Hametz u-Matza 6:3; Mekhirah 29:4; Edut 9:19; Melakhim 6:2; Tur YD 74; SA YD 74:1. and as Pri Megadim writes, "G‑d exempts duress." 55 OH , General Introduction, beginning of part 2. | {
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The answer to this question is based upon the Talmudic principle relating to "a case which began with coercion and ended with consent." 56 Ketuvot 51b. The Talmud discusses the case of a woman who was forced by a man to have relations, and during the intercourse people came to save her but she refused their help, saying: "Leave him be!" In other words, at that stage she no longer objected to the rape, but desired it. According to the Talmud, this process is designated as "a case which began with coercion and ended with consent," for which the woman is not liable with respect to the act of intercourse, since it is a matter of an involuntary instinct. 57 MT , Issurei Bi'ah 1:9; Sanhedrin 20:3; Helkat Mehokeik , SA EH 6:23. | {
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Yet, this halakhah cannot serve as a loophole through which to absolve a person of his sinfulness, as Rabbi Yosef Karo expounds: 58 Kesef Mishneh, MT Sanhedrin 20:3. | {
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Regarding that which he wrote, "due to her instincts she was overpowered," one may ask: if so, are all sinners exempt, because their instincts have surely overpowered them? The answer is that it is not only because her desire overpowered her that she is exempt; rather, we say that because the act began as assault but now her instinct has overpowered her, that she is exempt because the instinctual act originated in an act of coercion. | {
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In other words, where the person is defined as acting under coercion, he is not subject to punishment, even if the act ended with his consent, so long as the consent stemmed from the coercion. On the other hand, where it is clear that when a person begins something voluntarily and he has the option of not transgressing, he is most certainly responsible for his actions. | {
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In the present case, the husband received a Yeshiva day school education and he studied the importance of the dictum, "A man must honor his wife more than himself and love her as himself," 59 MT Ishut 15:19. or at the very least he studied the fundamental halakhot of human dignity, and therefore this is a person who should wish to observe the divine commandments. | {
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From all this it follows that the defendant falls into the category of a person who acted contrary to Jewish practice on account of his abusive conduct vis-à-vis his spouse and children, which were committed willingly and deliberately, and he may therefore be compelled to give a get . In short, spousal battery is an example of transgressing a Jewish practice ( oveir al dat Yehudit) . 60 Bi'ur ha-Gra, supra n. 14. Whether one can coerce a get or only obligate a get under such conditions is subject to dispute. 61 Rema SA EH 154:1; Teshuvot Noda be-Yehudah, Mahadura Tinyana EH 90–91. | {
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In sum, this Beit Din subscribes to the tradition that one ought to compel a get for three reasons: First, spousal battery is a ground for divorce (an ilat gerushin ). Secondly, the prevalence of both spousal battery and child abuse in this family propels the plaintiff to advance a plea of repulsion – "I cannot live with the defendant." Finally, such behavior is in variance with Halakhah and therefore the defendant is to be classified as transgressing a Jewish practice. | {
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Implicit in the above solutions is that in the event a particular defect serves as a ground to coerce a get , then under certain conditions it may equally serve as a basis to void the marriage. 62 Teshuvot Ein Yitzhak 1, EH 24 (41); Piskei Halakhot , Ishut 1, Yad Dovid 372 (in theory rather than in practice); Teshuvot Imrei Yosher 2:159; Teshuvot Birkat Retzeh 107; Teshuvot Maharsham 6:160; Iggerot Moshe EH 1:80; Teshuvot Har Tzvi 2:180; Sefer Minhat Avraham 2:10. | {
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Alternatively, one can arrive at the conclusion that a particular flaw is a major one and therefore under certain conditions one may void a marriage independent of the issue where it serves as grounds to issue a get compulsion order. | {
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In a judgment of the Beit Din ha-Rabbani ha-Gadol, the highest court under Israel's Chief Rabbinate 63 File no. 1-22-1510, Beit Din ha-Rabbani ha-Gadol, July 9, 2004. Rabbi Shlomo Daichovsky expounds as follows regarding the definition of defects on the part of the husband: | {
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The matter of defects for which a woman may sue for her get is not scripturally ordained law, but reason and logic, as Rambam writes (Hil. Ishut 25:2): "These matters are concepts that reason dictates; they are not decrees of the Torah." The entire subject of defects is a product of human reason, and the emotional unwillingness of one spouse to endure an intolerable situation on the part of the other spouse. For this reason we have the halakhah of "he assessed and accepted" or "she assessed and accepted." It is possible to say that if the general opinion concerning a particular defect changes, then it may not be said that "she assessed and accepted" on the basis of her past acquiescence. A defect may not necessarily be a physical one: defective behavior, such as consorting with prostitutes, may entail an order to give a get . Indeed, this halakhah concerning consorting with prostitutes appears in Shulhan Arukh 154, which is the section dealing with defects. In all civilized countries, it is very humiliating for a woman to share her bed with another woman, and a husband who takes another wife will be ordered to give a get , not only due to the ban of Rabbenu Gershom, but also due to the humiliation and the flaw in this (behavior – AYW). The parties came from Yemen, where it was acceptable to marry two wives. Here, this is considered a great disgrace, and must be regarded as a major defect. The wife's past acquiescence does not obligate her at present, and therefore this is not only a matter of "he is repulsive to me, ( ma'is ali )" but also a matter of a defect in the husband, due to which the wife cannot live with him. In the case of divorce due to a defect, the wife does not lose her ketubah . It is plausible to say that even if the wife married a philandering husband, and later repented of her decision and can no longer tolerate this situation, the husband will be ordered to give her a get , and will not be able to claim that she "assessed and accepted." Equally, in my opinion, the claim "She assessed and accepted" cannot be made in a situation in which a woman married a man who was an avowed homosexual, even though she was perfectly aware of his proclivity, and later learnt about the severity of the prohibition, and wishes to divorce him due to the husband being repulsive to her. Here, too, there is no room to argue that "She assessed and accepted." As we know, a husband's flaw (as well as a wife's flaw) that may serve as a ground to void a marriage frequently is based upon the halakhot of a mistaken transaction ( mekah ta'ut ) and consequently a defect which society views as a defect a purchaser may have grounds to rescind the sale due to the emergence of this flaw. 64 Teshuvot ha-Rif 153; Hiddushei ha-Rashba, Ketuvot 72b; MT, Mekhirah 15:5; SA HM 232:6; Semag, Negative Commandments 170; Teshuvot Divrei Ribot 300; Teshuvot Maharshakh 1:19; Teshuvot Tzedakah u-Mishpat HM 36; Malbushei Yom Tov 4. | {
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Similarily, Rabbi Shlomo Amar argues regarding battery of a wife, 65 Shema Shlomo , supra n. 13. | {
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In contemporary times, we need to be very stringent regarding the assaulting of one's wife since every well-mannered and intelligent man is embarrassed by this (conduct-AYW) and a woman cannot tolerate this and it is major embarrassment today compared to earlier times . . . a man who batters his wife is deemed as being disgusting and abhorrent in his wife's eyes . . . to the extent that she cannot live with him. | {
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In accordance to Rabbis Amar and Daichovsky, undoubtedly a wife has a justifiable argument claiming that her spouse is repulsive (" ma'is ali ").Consequently, it is of no surprise that numerous Israeli rabbinical courts have examined spousal assault as a grounds for divorce through the prism of the wife's plea that "he is repulsive to me." 66 PDR 7:201, 12:3, 84, 324, 16:145; File no. 819158/3, Beit Din ha-Rabbani ha-Gadol, October 5, 2011; File no. 284462/9, Netanya Regional Beit Din, April 9, 2014; File no. 980712/1, Haifa Regional Beit Din, October 27, 2014; File no. 269629/9, Netanya Regional Beit Din, June 19, 2016; File no. 1078402/6, Haifa Regional Beit Din, June 5, 2017. Based upon the above, a husband's battery of his wife is a major defect (" mum gadol ") and under certain conditions may serve as grounds to void a marriage. | {
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Under certain conditions some decisors argue we may invoke a clear expectation (the umdana de-mukha ) that a woman is unwilling to marry a man who is a batterer and abuser. 67 Teshuvot Maharam of Rothenberg , Prague ed., 1022 (halitzah -in theory); Teshuvot Hesed le-Avraham , Mahadura Tinyana, EH 55; Teshuvot Radakh 9; Teshuvot Avnei Hefetz 30; Teshuvot Meshivat Nefesh , EH 73–77; Teshuvot Radar (Meisels), EH 40; R. Posner, Tzal'ot ha-Bayit 6 ; Teshuvot Shoeil u-Meishiv, Mahadura Tinyana 198 ; Teshuvot Divrei Malkiel 4:100; Teshuvot Zikhron Yehonatan 1, YD 5; Teshuvot She'elot Moshe , EH 2 ( halitzah ); Teshuvot Har Tzvi , EH 2:133; Teshuvot Iggerot Moshe , EH 4:121 ( halitzah -in conjunction with kiddushei ta'ut ); File no. 861974/2, Tzfat Regional Beit Din, May 20, 2014 (in conjunction with another reason). | {
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However, given the fact that the defendant bolted the marriage while the plaintiff attempted to maintain the family unit lest her children be stigmatized by the community, one cannot invoke a clear expectation which results in her marriage being voided. In other words, the employment of a clear expectation assumes that certain inappropriate conduct displayed by the defendant during the marriage consequently led her to separate from him. Despite being a victim of spousal battery accompanied by her husband's acts of child abuse, in fact she never left him. Therefore, under such circumstances one cannot advance a clear expectation. | {
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Nonetheless, following a recent contemporary Israeli beit din ruling, 68 In File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013, the beit din panel invokes a double halakhic doubt based upon two different controversies whether get coercion may be imposed regarding two different grounds for divorce. we find an alternative here, which is that we are dealing here with three halakhic doubts regarding what the Halakhah ought to be regarding the propriety of a get compulsion order. Without elucidation, the panel posits that since a doubt regarding the propriety of get coercion entails a biblical doubt, therefore we are dealing with three halakhic doubts on a biblical level, where a get may be coerced. | {
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First, there is a doubt created by dint of the controversy as to whether one may coerce a get due to spousal battery. Additionally, there is a second doubt as to whether one can mandate get coercion when a wife advances a plea that her husband is repulsive, a claim supported by a clear pretext. Finally, given that spousal battery and child abuse is in violation of Halakhah , there emerges a debate as to whether a husband who is transgressing a Jewish practice may be compelled to give a get . A doubt (a safek ) related to get coercion entails an uncertainty on a biblical level. 69 A doubt involving the propriety of get coercion under particular circumstances is to be construed as a biblical doubt. See Hiddushei ha-Ramban Yevamot 46a; Hiddushei ha-Rashba , ad locum; Pithei Teshuvah SA EH 70:3 in the name of Hatam Sofer and Beit Meir. In other words, if there is a halakhic controversy whether to coerce a get , due to the existence of a halakhic doubt we refrain from coercing a get . See Tosafot, Ketuvot 70a; Rema, SA EH 154:21. Should a get be coerced under such conditions, the get is null and void. The assumption is that if Halakhah mandates the get ought to be coerced we are dealing with a situation that the wife can no longer live with her spouse and consequently, she is not bound ( shi'bud ) to him. As Dayan Izirer notes, "The nullification of the servitude empowers her with the right to be liberated from all of the husband's servitudes, including the primary servitude that she is prohibited due to him to others and she is preempted to receive all her marital rights because she was married to him." See H. Izirer, "The Duty of the Get and Maintenance to a Rebellious Wife who is Repulsed by Him," (Hebrew) 2 Shurat ha-Din 64, 99 (5754). In short, the propriety of get coercion entails a biblical doubt regarding the presumption that she is a married woman. Whether one can void the status of "a married woman" in case of a compounded biblical doubt, see Teshuvot Oneg Yom Tov 167; Y. Goldberg, Elu- She-kofin Le-hotzi , 51, n. 46, 131, n. 18 and infra n. 87. As such, given that we have three doubts in our present case as we presented earlier in this decision we are dealing with three halakhic doubts which will trump the presumption of being a married woman and reinstate her original presumption of being a single woman. 70 Shakh, YD 110, Kelalei Sefek Sefeikot 29; Teshuvot Oneg Yom Tov 167; Get Pashut 120 (26); Sedei Hemed, Ma'arkhet Get 30 (6); Teshuvot Kol ben Levi 3; Teshuvot Kapei Aharon EH 5 ; Teshuvot Yabia Omer , 6 EH 6 (5), 10, YD 58. See infra n. 84. | {
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Lest one challenge our conclusion, claiming that since the majority of arbiters reject get coercion for a husband who is a batterer, and a majority of decisors oppose a compulsion order for a wife who advances a plea of being repulsed by her husband and supports her claim by a clear pretext undermines the effectiveness of a double doubt which requires that the halakhic debate ought to be even (i.e. the authorities are equally divided concerning whether the issuance of a compulsion order ought to be sanctioned), 71 Tosafot Ketuvot 9a, s.v. ei ba'it eima . we respectfully disagree. | {
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Our conclusion is based upon the following: Bahag, Rif, Rambam, Rosh (possibly), Ra'vaad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya'akov Emden and Rabbi Ovadiah Yosef, who opine that under certain conditions (e.g. a doubt as to what the Halakhah ought to be), a biblical doubt (a sefeika de'oraita ) ought to be resolved stringently on a rabbinic level. 72 Ha'amek Sheilah 68 in the name of Bahag; MT, Tumat ha-Met 9:12, Avot ha-Tumah 16:1, Issurei Biah 18:17, Kilayim 10:27; Teshuvot ha-Rambam 310; Alfasi, Pesahim 40b, Kiddushin 5b; Mordekhai, Yevamot 21; Teshuvot Bnei Shmuel 42 in the name of Rosh; Teshuvot Mutzal me-Aish 12 in the name of Rosh; Sedei Hemed ha-Shalem , 5, Ma'arkehet Samakh, Kelal 10 (Cf. Piskei ha-Rosh Yoma 8:7, Teshuvot Ktav Sofer OH 30 and Teshuvot Beit Ephraim EH 2 in the name of Rosh); Ra'vaad, Tumat ha-Met , op. cit., Kilayim , op. cit.; Beit Yosef, Tur YD 228 in the name of Teshuvot ha-Ran 51; Teshuvot Yad Eliyahu of Lublin 49; Semag, Negative Commandments 121; Hiddushei ha-Ramah, Kiddushin 39a; Sefer Beit ha-Behirah, Shabbat 23a, Hagigah 4a, Kiddushin 5b; Hiddushei ha-Ritva, Rosh Hashanah 34b, Avodah Zarah 39b; SA OH 616:2, YD , 110:9, 302:1; Teshuvot Beit Shlomo 2, YD 115 in the name of SA; (Cf. Teshuvot Torat Hesed OH 3, EH 13 in the name of Shulhan Arukh) (Cf. Noam Siah , vol. 1, 252–275 who argues that Rabbi Karo's view is unclear); Teshuvot ha-Ridvaz 4:93; Teshuvot Ginat Veradim, Kelal 8; Birkei Yosef 184:1; Teshuvot Sheilat Ya'avetz 2:143; Teshuvot Yabia Omer 1, YD 3, 6, EH 3, 6, YD 24. See also, Pri Megadim Petihah le-Birkot ha-Shahar ; Teshuvot Zikhron Yosef YD 19; Miz'geret Shulhan 110; Mahazik Braha 589:6; Teshuvot Yabia Omer , 10, YD 6:9–10. In pursuance to this tradition that we are dealing with a rabbinic matter, there is no requirement that the double doubt (the sefek sefeika ) represent that the decisors are equally divided (i.e. shakul ) whether one may coerce a get in order to free the wife without a get . 73 See infra n. 80. As such, the double doubt trumps the presumption that she is a married woman and she is free to remarry. Moreover, even according to Rashba that a biblical doubt ought to be resolved stringently on a biblical level, that does not necessarily mean that the application of a double doubt will be ineffective. The consequent leniency associated with the implementation of a "double uncertainty" is due to the rule of "follow the majority" (" aharei rabbim le'hattot "). The existence of one doubt creates a situation of a 50/50 uncertainty ( ke-mehtza al mehtza dami ), while the second doubt then creates a majority which results in treating the matter leniently on a biblical level. 74 Teshuvot ha-Rashba 1:401; Pri Hadash 110:49; Teshuvot Torat Hesed OH 3:4; Teshuvot Kol Eliyahu 2, YD 3. For alternative explanations as to the effectiveness of the double uncertainty even according to those authorities who contend that a biblical doubt (a safek do'oraita ) is resolved stringently on a biblical level, see Tal Hayyim , 372, 379–383. In accordance with many legists, this approach is the dominant understanding as to why the employment of the double doubt will be effective. 75 Teshuvot Binyan Tzion 1:14; Teshuvot Yabia Omer 6, YD 14, 7, EH 6:5; Taharat ha-Bayit 1, 135–136. Given the above lines of reasoning, 76 Though in pursuance to Teshuvot Divrei Malkiel 7:2, the requirement of even ( shakul ) applies to Rambam's approach, that regarding a doubt on a biblical level one must act stringently, nevertheless we have implicitly subscribed to the view that this approach would equally not mandate the requirement of even number of arbiters staking out an opinion on each side of the doubt. See Teshuvot Yabia Omer 6, EH 6; Teshuvot Yehaveh Da'at 2:74 (271–272). A discussion of this matter is beyond the scope of our presentation. there is no prerequisite that the doubt under scrutiny must be even, namely that the arbiters would be equally divided concerning the propriety of the issuance of a get compulsion judgment. 77 For the definition of "even" as referring to the arbiters equally divided regarding a particular issue, see Teshuvot Zivhei Tzedek 110: 158; Teshuvot Beit David YD 6; Teshuvot Ohel Yosef 30; Teshuvot Dvar Moshe 3, YD 2; Teshuvot Hesed le-Avraham OH 13; Teshuvot Yabia Omer 3, OH 16 (7); Get Pashut 120:26 ; 917387/1 Regional Beit Din Yerushalayim, November 17, 2013. Clearly, many of the decisors cited infra n. 84 did not require that the arbiters be equally divided regarding the propriety of the issuance of a g et compulsion order or voiding a marriage prior to invoking a double halakhic doubt. Cf. Get Pashut , op. cit. and File no. 917387/1, op. cit. who mandate that the decisors in a particular dispute must be equally divided regarding the propriety of a get compulsion order or voiding a marriage. Even if one side of the doubt reflects a minority opinion, the double doubt will be effective. 78 See supra text accompanying n. 75. Finally, given that the rule of "following the majority" is applicable only to resolving issues within the confines of a beit din proceeding, one cannot speak of a majority opinion and minority opinion concerning intergenerational disputes. 79 Teshuvot ha-Rashba 2:104, 3:304, 5:126; Teshuvot ha-Ritva 85; Beit Yosef, Tur HM 13 (7) in the name of Rashba; Teshuvot Maharlbah 147. As such, the requirement that the decisors be equally divided regarding a pending issue is not mandated regarding a double doubt. 80 Tal Hayyim , 523. | {
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Lest one challenge that every halakhic uncertainty, such as whether one can coerce a get in the case of domestic battery or transgressing a Jewish practice, entails one doubt, namely whether we can coerce a get, or for that matter to void a marriage, entails one uncertainty (" me'shem ahad "), one ought to conclude that deploying a double doubt will be ineffective. 81 Teshuvot Maharbil 3:41, 51; Teshuvot Lehem Rav 26; Pri Megadim 489:13. For additional decisors who adopt this posture, see Knesset ha-Gedolah, EH 68, ha- Gahot ha-Tur 22; HM 25, ha-Gahot ha-Tur 82–83. On the other hand, others contend that invoking a double doubt is justified even if it is all one uncertainty regarding the controversy. 82 Teshuvot Maharam Alshakar 26; Teshuvot Maharashdam YD 91, EH 33; Teshuvot Mishpat Tzedek 1:2; Teshuvot Hikrei Lev, Mahadura Batra YD 1. Halakhically speaking, there exists a majority to permit it and therefore even though each doubt leads to the same result, namely sanctioning the issuance of a get compulsion order, applying the double uncertainty ought to be valid. 83 See also, M. Levi, Sefer Yosef Da'at , 141–149. For the connection between whether one may coerce a get in a particular case with the ability to void the marriage, see supra Chapter 3 (end). | {
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In short, relying upon a well-trodden tradition of Ashkenazic as well as Sephardic decisors, in this case we are invoking a series of a halakhic doubts which under certain conditions permit us to reinstate her original status as a single woman without having her receive a get . 84 Teshuvot Ein Yitzhak, 1 EH 24 (48) (release from a levirate marriage- halitzah ); Teshuvot Ein Yitzhak 1, EH 22 (18), 62; Teshuvot ha-Ranah 1:68; Teshuvot Pnei Moshe 2:51; Teshuvot Hikrei Lev 1, YD 130, EH 59; Teshuvot Maharashdam EH 33; Teshuvot Maharbil 21, 33, 48, 62, 64; Teshuvot Maharash 5, 8, 35, 48; Teshuvot Ba'ei Hayyai, YD 216; Teshuvot Maharash 5, 8, 35, 48; Teshuvot Perah Shushan EH 3:2; Teshuvot Sha'ar Asher , EH 1:29, 31; Get Pashut Gittin 129:13; Teshuvot Rabbi Akiva Eiger , Pesakim 37, Mahadura Tinyana 45; Teshuvot Beit Shlomo EH 37; Teshuvot Shem Aryeh EH 111; Kereti u-Peleti , YD 110; Pri Hadash , YD 110: 5, 16; Teshuvot Yismah Lev 12; M. Yerushalamski, Teshuvot Minhat Moshe EH 11; Get Pashut 129:13; Knesset ha-Gedolah, EH 65, ha-Gahot Tur 22–23 in the name of a dozen decisors; M. Yerushalamski, Teshuvot Be'er Moshe , Kuntres Binyan Yerushalyim 18; Teshuvot Nediv Lev EH 8; A. Makovsky, Teshuvot Ohalei Aharon 1:19; Teshuvot Ahiezer 3:19 (release from levirate marriage- halitzah ); Teshuvot Rav Pealim EH 3:11 (end); Teshuvot Yabia Omer 3 EH 18, 6 EH 3 (8), 6, 8; Teshuvot Shema Shlomo 1, EH 6; S. Messas, " A doubt in coercion of a Get ," (Hebrew) 23 Tehumin 120, 123–124 (5763); Teshuvot Minhat Osher 1:73; PDR 21:10; File no. 1126792/1, Netanya Regional Beit Din, 11 Tishrei 5778; Teshuvot ha-Rishon le-Tzion 2:8 For additional authorities who endorse this posture, see numerous responsa, Ashkenazic and Sephardic alike cited in Sefer Rav Berakhot , 126; Mishpat ha-Get , vol. 3, 495–499; Teshuvot Yabia Omer 1, EH 3 (14), 6, EH 3 (9, 14–15), 6 (5) and this writer's Rabbinic Authority , vol. 4, 159, n. 47. In short, in the wake of a get recalcitrant husband, we deem the matter as "an hour of emergency" ( sh'at ha-dehak ) and a priori ( le-hatehillah ) we can void the marriage based upon a double halakhic doubt. See Sedei Hemed , Ma'arekhet Get 30(6) and ha-Sameah 30(3) in the name of Rashba and Ridvaz. For additional halakhic underpinnings for invoking a double doubt, see supra chapter 2. In this particular case, this ruling was written in pursuance with Jewish law ( le'halakhah ) and not implemented in practice ( le'ma'aseh ). Though this panel was prepared to void the marriage for this five-year agunah , to the surprise of the wife and the beit din panel, the husband decided to give her a get prior to issuance of a psak din , decision. Assuming the beit din would have voided the marriage and subsequently, the husband changed his mind and desired to give his wife a get could the beit din offer its services to identify a rabbi who would be able to execute a get ? Rabbi Ariel Holland of Tekoa, Israel and a member of our panel responded to our question in the following fashion: One view is that once a beit din has voided a marriage, it cannot become involved in the facilitation of a get . Such involvement only creates the impression that the beit din doesn't believe in the merits of its own decision of voiding a marriage. On one hand, the beit din has voided the marriage and on the other hand, the beit din has now created a rumor (a kol ) that she is married by trying to facilitate the execution of a get . Such involvement undercuts its decision to void the marriage. See Teshuvot Noda be-Yehudah EH , Mahadura Tinyana 75(42a). However, others argue that such a position adopted by the beit din is no different than when a get is executed and suddenly we are apprehensive regarding the slander cast upon the propriety of the get and therefore for the sake of stringency we mandate the execution of a second get . Similarly, in our situation where others oppose voiding a marriage and therefore cast aspersions regarding the propriety of the decision of voiding a marriage, one needs to deliberate whether to support the execution of a get as a matter of stringency. See Tosafot Gittin 90a, s.v. ve'hilkhta , in the name of Rabbeinu Tam; Teshuvot Beit Yosef , Gittin and Gerushin 13(end); Teshuvot Divrei Ribot 225. | {
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G. An epileptic husband | {
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Facts | {
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The couple was married in accordance to Orthodox Jewish law in 1995 and subsequently sired five children. In 2015, Sarah (hereinafter: the plaintiff) separated from her spouse, Yosef (hereinafter: the defendant), and a civil divorce was executed a year later. We summoned the defendant to appear at the Beit Din in order to address the matter of the get . However, he refused to appear for a hearing. Though the defendant was obligated by beit din to give a get to his wife, to date he has refused to give one to the plaintiff. It is our understanding that he was a convert to the Jewish religion and did not observe religious commandments. | {
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The plaintiff was adopted and during her childhood she was emotionally abused by her stepmother. Similarly, according to the defendant's sister, he was subjected to emotional abuse by his mother. Already during the early years of the marriage, the plaintiff, their children as well as her child from her first marriage, were abused by the defendant. In 1999, the plaintiff threatened to leave him. His response was that if she attempts to leave him, he will kill her. She took his threat seriously and remained with him. | {
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During the course of the marriage, she discovered various matters about her husband that her spouse failed to disclose to her prior to marriage. First, the plaintiff was present when he experienced a seizure and she later found out that he was diagnosed with epilepsy a few years prior to the marriage, and until 2006 he was on dilantin and subsequently on trileptal to control his seizures. In 2002, the defendant began to suffer from dementia, which may be caused by the use of the above medication, and he was prescribed aricept. Along with his history of seizures and his dementia, the defendant was taking medication on a permanent basis for heart disease, diabetes and depression. The defendant's medical history was corroborated by the documentation of three doctors. In the process of the plaintiff's discovery of this medical documentation, she discovered the defendant's real name. | {
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Frequently, the defendant would seclude himself in his room and be in a depressive mood. Outside of the room, frequently he would be confrontational to his family and accused the plaintiff a few times of engaging in affairs with other men. As per a newspaper release, we read that the defendant was imprisoned for soliciting a prostitute. As the years passed, his conduct worsened. According to the professional literature, his having been a victim of child abuse may have been a cause of his lack of empathy towards people, his anti-social behavior, 1 He allegedly only had one friend his entire lifetime. and his bouts of depression and jealousy. It is the understanding of his doctors that there is a direct link between the defendant's childhood experiences and medical history with the abusive behavior he exhibited toward the plaintiff and the children. A social worker who was providing counsel to his children, along with one of the plaintiff's friends, communicated to us that they were told about his abusive behavior from the children and the plaintiff. | {
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Despite the defendant's inappropriate behavior, the plaintiff continued to cater to his needs. Regularly, he had his meals served to him either in the bedroom or on the living room couch. In one incident, the defendant was lying on the house lawn in an epileptic fit from which he could have died, and he implored the plaintiff to let him die, yet her reply was "that's not me," and she addressed his situation, saving his life. | {
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In one incident after their marital separation, as per a police report, the defendant entered the marital home and cut the electric and telephone wires as well as destroying the children's property as well as the plaintiff's computer. In the wake of this event, the police issued a temporary restraining order. The straw that broke the camel's back was when the children implored the plaintiff to throw him out of the house due to his abusive behavior and because he had burnt her sheitel . 2 A head covering worn by Orthodox Jewish married women. Subsequently, they separated. | {
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In light of his medical and psychological condition, the civil court ruled that visitation privileges with his children would be permitted on the condition that the defendant receives a psychologist's approval that he did not pose a danger to his children and was able to care for them. Without such approval, the court prohibited him from seeing his children. | {
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Discussion | {
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Prior to a wife's invoking the technique of kiddushei ta'ut (loosely translated as a mistaken marriage) to void a marriage retroactively and claim that that there was an error in the creation of the marriage, three preconditions must be obtained: | {
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1. The husband's defect must be a major one. As Mishnah Ketuvot states: 3 Ketuvot 7:9–10. | {
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A man in who defects arose; we do not compel him to divorce (his wife – AYW). Rabban Shimon ben Gamliel said: When is this case – when the blemishes are minor. But in the case of major flaws, we compel him to divorce (her – AYW). And these are (the flaws) for which we compel (a man – AYW) to divorce (his wife): one who is afflicted with skin boils, one who has a polyp, and one who collects excrement, the copper smelter, the tanner, etc. | {
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Accordingly, there is a list of major defects memorialized in the Mishnah (as well as in the Talmud) which serve as the grounds to compel a husband to give a get . 4 Additionally, certain instances of a husband's emotional abuse may justify get coercion. See Mishnah Ketuvot 7:1; Kiddushin 2:5; Ketuvot 48a, 70a, 71a-b; Yevamot 64a, 65a. Consequently, it is unsurprising that numerous authorities will invoke only these specific flaws as grounds for issuing a get compulsion judgment. 5 Rashi, Yevamot 65b, s.v. hu a'mar ; Tosafot, Ketuvot 70a, s.v. yotzi ; Tosafot, Yevamot 64a, s.v. yotzi ; MT, Ishut 15:7; Piskei ha-Rosh, Yevamot 6:11; Teshuvot ha-Rosh 17:6, 42:1 in the name of Ra'avyah, 43:3 (Cf. Piskei ha-Rosh , Ketuvot 4:3, 5:34; Teshuvot ha-Rosh 43:6); Mordekhai Ketuvot 194; Hiddushei ha-Ramban Ketuvot 63b; Hiddushei ha-Rashba Ketuvot 64a; Teshuvot ha-Rashba ha-Me'yuhasot le-Ramban 138; Sefer Meisharim, Netiv 23, Helek 8 in the name of Rashba; Tur EH 154 in the name of Ramah; Beit ha-Behira, Ketuvot 63a; Teshuvot of Maharam of Rothenberg , Prague ed., 946; Hagahot Maimoniyot, Ishut 25:4; Teshuvot ha-Rashbash 93; Tur SA 154 in the name of Rosh; Teshuvot Mahari Bruna 211; SA EH 154:5, 21; Teshuvot Binyamin Ze'ev 1:88; Rabbi A. ha-Levi, Teshuvot ha-Ridvaz 4:108 (1180), 1331 (260); Teshuvot Be'air Sheva 61; Teshuvot Mekor Barukh 17; Teshuvot Emunat Shmuel 8; Teshuvot Maharit EH 2:14; SA EH 154:5; Teshuvot Maharshakh 3:42; Bi'ur ha-Gra, SA EH 154:50, 65; Tosafot Yom Tov, Tur EH 154; Pithei Teshuvah SA EH 154:7, 29; Teshuvot Hakham Tzvi 1; Rabbi Eliyahu ha-Levi, Teshuvot Zekan Aharon 149; Hazon Ish, Ketuvot 69:23. The implications of this approach, namely that the scope of get compulsion is defined by a list of specific grounds enumerated in the Mishnah and the Talmud, means that certain conduct and types of illness such as insanity, psychological disorder, homosexuality, child abuse or a contagious disease such as AIDS or syphilis will not be a ground for compelling a get . As the famed ruling of Rabbi Asher b. Yehiel (known by the acronym: Rosh) notes: 6 Teshuvot ha-Rosh 43:3. | {
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One cannot add to what the Scholars enumerated. | {
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However, the words of the aforementioned Mishnah belie another approach which expands the scope of grounds for get compulsion. The Mishnah teaches us: | {
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And these are (the flaws) for which we compel (a man – AYW) to divorce (his wife): one who is afflicted with skin boils, one who has a polyp, and one who collects excrement, the copper smelter, the tanner, etc. | {
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The word "etc." teaches us that the list is an open list. One tool which will widen the scope of grounds for a get ( ilot gerushin ) is the employment of analogical reasoning ( hekesh ). For example, just as regarding a husband who has a polyp, while there are prospects for a cure, one may still mandate get compulsion, similarly, regarding a husband who has a scab on his head, while there is a chance for a cure, one may coerce a get . 7 Yad Aharon EH 154:4 in the name of Teshuvot Tashbetz 2:180. Or, just as a husband who has a foul-smelling mouth justifies get coercion, similarly a husband who is imprisoned and in effect his status is one of being in a situation beyond his control wherein he cannot fulfill his marital duties (an onus ), get compulsion ought to be legitimate. 8 Teshuvot Oneg Yom Tov 168. | {
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Another technique which will expand the list is the utilization of a fortiori reasoning (a kal ve-homer ). For example, if there is an explicit mention that a husband who has a polyp or has an obnoxious order can be compelled to give a get , a fortiori, contends Rabbi Shimon b. Tzemah Duran (known by the acronym: Tashbetz), causing pain such as physical or emotional abuse legitimates the employment of get compulsion. 9 Teshuvot Tashbetz 2:8. See also Teshuvot Maharam of Rothenberg , Prague ed., 907; Teshuvot Yakhin u-Boaz 2:44; Arukh ha-Shulhan EH 154:15; Hazon Ish, Gittin 108:14. Or just as a husband cannot vow to have his wife abstain from engaging in conjugal relations with him lest a get be compelled, 10 Mishnah Ketuvot 7:1. analogously one can compel a husband to give a get should he be incarcerated and thus be unable to have relations with his wife. 11 Teshuvot Tashbetz 2:68. | {
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Furthermore, though Rosh refuses to expand the list of grounds for get compulsion, 12 See supra text accompanying n. 6. nevertheless, when addressing the case of an epileptic husband, he unhesitatingly argues that if we compel a get in a situation of a husband who has a foul-smelling mouth, surely we will do it for preventing the occurrence of a danger (" hayei ha - nefesh "). 13 Teshuvot ha-Rosh 42:1. See Teshuvot Ma'sat Moshe 1, EH 17. In the wake of a husband's conduct or physiological or psychological illness which is mentioned neither in the Mishnah nor in the Talmud, we leave as an open question whether the decisors mentioned supra in note 5 would equally expand the list via analogical reasoning or a fortiori . For other rulings of Rosh which expand the cases for get compulsion, see Piskei ha-Rosh, Ketuvot 5:34; Teshuvot ha-Rosh 43:6, 13. | {
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Given that eplilepsy is not one of the instances enumerated in the Mishnah and Talmud which serves as a basis for get coercion, we need to address the threshold question of whether one can compel an epileptic husband to give a get . | {
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In the second half of the thirteenth century, Rabbi Mordekhai b. Hillel ha-Kohen of Germany communicates to us the following tradition: 14 Sefer Mordekhai, Ketuvot 201. | {
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Ra'avyah writes that even though epilepsy in regard to a woman constitutes a defect, one cannot advance this as proof that we should consider it a defect for a man since "a woman is satisfied with anyone" and you should know that epilepsy is not written concerning men's defects, and we cannot coerce without a demonstrable proof . . . and this is what he heard from his father Rabbi Yoel ha-Levi. | {
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In other words, get compulsion is not an option regarding an epileptic husband for two reasons. Firstly, the Talmudic presumption that "a woman is satisfied with anyone," which is construed by post-Talmudic decisors as equivalent to the Talmudic presumption that it is better to live as two than to live alone (" tav le-meitav tan du mi-le-meitav armelu "), 15 Teshuvot Hatam Sofer EH 1:82; Teshuvot Beit ha-Levi 3:3. preempts the possibility of get compulsion. Get coercion is predicated upon the person considering a particular illness as a defect which mandates marital dissolution. The invoking of this presumption teaches us that a woman is willing to tolerate living with a man who suffers from this illness. As such, we are proscribed from compelling a get . Secondly, epilepsy is absent from the Mishnaic and Talmudic list of illnesses and types of conduct which legitimate get compulsion. Consequently, under such circumstances we cannot compel a get . Whereas, Rabbi Yoel, Ra'avyah's father, is in doubt as to whether one may compel an epileptic husband to give a get and therefore acted stringently, 16 Teshuvot of Rabbi Meir of Rothenberg , Prague ed. 154; Teshuvot ha-Rosh 42:1 in the name of Rabbi Yitzhak b. Meir and Rabbi Hayyim b. Yosef. Ra'avyah offers reasons for rejecting this possibility, with Rabbi Mordekhai ben Hillel aligning himself with that posture. On the other hand, Rosh, who lived in the same century as Rabbi Mordekhai, argues that epilepsy is a major flaw and may serve as a basis for voiding the marriage. 17 Rosh , supra n. 13. | {
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These opposing views converged in the famous responsum of the nineteenth century Hungarian rabbi, Rabbi Moshe Sofer, wherein he stakes out his position concerning this issue. He teaches us the following: 18 Teshuvot Hatam Sofer EH 1:116, cited in Pithei Teshuvah SA EH 77:8. | {
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Even if it is clear in Heaven that Halakhah follows Rosh, since there is the opposing opinion of Mordekhai, and we do not have anyone who can decide between them, if one forced him to divorce, she is still a definitely married woman . . . it is presumably agreeable to him to fulfill the words of the Rabbis who said one should compel him to divorce [under these circumstances] – as Rambam beautifully explains. However, this is only when it is clear to the husband that the coercion is in accordance with the Halakhah according to every authority, for if so, it is a duty (in the husband's case – AYW) to comply with the teachings of the Rabbis. However, in this situation, the husband will say, "Who says it is a duty to heed the words of Rosh; perhaps it is an obligation to follow the words of the Mordekhai?" For if when he said, "I agree" it was coerced, it did not emanate from his heart . . . | {
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In other words, a husband's constructive consent to give a get is predicated upon the fact that all authorities agree that a get ought to be coerced. Should one opinion dissent, one cannot speak of "a husband's real will" being to give a get . 19 For a differing posture which interprets Rabbi Sofer's teshuvah as validating get coercion if the majority of decisors endorse get compulsion, see Teshuvot Hatan Sofer 59; PDR 4:164, 166 (Rabbi Elyashiv's opinion)= Kovetz Teshuvot 2:83. See further, this writer's Rabbinic Authority , vol. 3, 35–43. Given that there are some dissenting opinions, and nineteenth century medical opinion claims that living with an epileptic does not pose a danger to oneself and is not contagious, Rabbi Moshe Sofer opines that there are no grounds to coerce a get . Various authorities subscribe to his position. 20 Ridvaz , supra n. 5; Teshuvot ha- Mabit 3:212; Teshuvot Maharik , shoresh 131; Teshuvot Maharbil 4:13; Teshuvot Beit Shmuel 6; Teshuvot Hatam Sofer EH 1:115; Teshuvot Maharam Schick EH 140; Teshuvot Hatan Sofer EH 100; Teshuvot Mahariz Enzel 88; Teshuvot Tzemah Tzedek EH 1:130. This view is the first opinion identified as "some say" (" yesh omrim ") in Rema's ruling. 21 Rema, SA EH 154:5. | {
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Given that Rabbi Yosef Karo only cites Ra'avyah's opinion in his Beit Yosef and does not endorse Rosh's view in his subsequent compendium, Shulhan Arukh, some conclude that he aligns himself with the decisors who reject get coercion in the case of an epileptic husband. 22 Teshuvot Pri Tzadik 11; Teshuvot Emek Yehoshua 17; Teshuvot Dvar Shmuel Amar 43; Sedei Hemed ha-Shalem, Ma'arekhet Gerushin 6:15. However, given that earlier in his Beit Yosef, as well as in his Shulhan Arukh, Rabbi Karo wholeheartedly subscribes to Rosh's position, we may conclude that he would compel an epileptic husband to give a get . 23 Beit Yosef, Tur EH 117 (end); SA EH 117:11; Bi'ur ha-Gra SA EH 154:18; Teshuvot Dvar Yehoshua EH 3:30. As Maharam of Lublin and Maharal Zunz contend, many authorties ascribe to this opinion, with some emphasizing that the case must be a case of a husband's get recalcitrance. 24 Teshuvot Maharam of Lublin 1; Teshuvot Maharal Zunz EH 22; Teshuvot Maharit 1:113; Teshuvot ha-Ridvaz 1:53; Teshuvot Ma'harhash 33; Teshuvot Rabbi Akiva Eiger, Mahadura Tinyana 74; Beit Shmuel, SA EH 117:21, 154:9; Helkat Mehokeik, SA EH 117:21; Bi'ur ha-Gra SA EH 154:19; Teshuvot Noda be-Yehudah , Mahadura Tinyana EH 104; Teshuvot Tzemah Tzedek EH 2; Teshuvot Agudat Eizov EH 22; Teshuvot Mohr ve-Oholot EH 10; Teshuvot Even Yekarah 3:53; Teshuvot Sha'ar Asher 1:45; Teshuvot Iggerot Moshe EH 1:80. This view is the second opinion identified as "some say" (" yesh omrim ") which is memorialized in Rema. 25 Rema, supra n. 21. | {
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The emerging question is whether Rema identifies his view with the first opinion that rejects get coercion or with the second opinion which endorses get compulsion. Given that both views are recorded, 26 Rema , supra n. 21. one approach is that Rema left the matter undecided. 27 Teshuvot Ma'sat Binyamin 11; Teshuvot Emunat Shmuel 6; Teshuvot Maharit 3:212; Birkat ha-Mayim 104; Pri Megadim 11; Agudat Eizov, supra n. 24. However, others assert that since earlier in his rulings Rema stakes out a position and clearly advances Rosh's posture, namely legitimating get compulsion in the case of an epileptic husband, 28 Rema SA EH 117:11. he relies upon his resolution there and subsequently he recorded both opinions, 29 Sedei Hemed ha-Shalem , 6, Kelalei ha-Rema , 12. believing that his second opinion is the normative one. 30 Maharam of Lublin , supra n. 24; Rabbi R. Katzin, Takfo shel Refael 104. Cf. Helkat Mehokeik SA EH 117:20. | {
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Based upon the foregoing, the beit din followed in the footsteps of many of the authorities who construed epilepsy as a major defect (a mum gadol ) and therefore may serve as grounds to compel a husband suffering from this illness to give a get . | {
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In the wake of the particular circumstances of our case, we advance four additional rationales for get coercion. Firstly, though generally speaking compelling an epileptic to give a get is opposed by Hatan Sofer, nevertheless in light of the fact that engaging in conjugal relations was difficult in our present case due to his epilepsy, Rabbi Sofer concurs that it would be proper to coerce a get . 31 Hatan Sofer , supra n. 20. Moreover, given that the defendant could not support his wife due to his illness, we coerce the giving of a get . 32 Mohr ve-Oholot, supra n. 24. Lest one raise the argument that given that she supported him during periods of his illness and consequently get compulsion was unjustified under the circumstances (see PDR 4:164, 174), under the circumstances, the plaintiff's salary was insufficient to cover her living expenses. As such, get coercion is legitimate. See PDR 4:164, 172, 174. Furthermore, as Rabbi Elyashiv claims, since we are dealing with a husband's get intransigence, namely, the defendant's behavior exhibits get recalcitrance, as such get compulsion may be meted out. 33 Ridvaz , supra n. 24; Maharit , supra n. 24; Teshuvot Noda be-Yehudah , Mahadura Tinyana EH 106; Mahariz Enzel, supra n. 20; PDR 4:164, 171 (R. Elyashiv's opinion). Finally, given that there is a concern that marital separation may lead to the commission of sin, consequently we coerce a get by dint of being empowered to coerce the prevention of prohibitions ( kefiyah al ha-mitzvot for ifrushei issura ) rather than by dint of halakhic divorce law. 34 PDR 4:164; Teshuvot Hayyim ve-Shalom 2, EH 35; A. Sherman, "Extended separation as grounds for obligating a get ," (Hebrew), Kenes ha-Dayanim , 5767, 102, 108–110. | {
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The ramification of our conclusion that get coercion is legitimate implies for some decisors that the Talmudic presumption ( hazakah ) "it is better to live as two than to live alone" is inapplicable. 35 Yevamot 118b; Ketuvot 75a; Kiddushin 7a, 41a; Bava Kama 110b-111a. The presumption is only operative if one cannot compel the giving of a get . 36 Teshuvot Ein Yitzhak 1, EH 24 (38–39, 41); Teshuvot Birkat Retzeh 107; Teshuvot Ahiezer 27; Iggerot Moshe EH 1:79. While some authorities claim that epilepsy is to be viewed as a major defect due to the exposure to danger beyond one's control, like insanity or worse than a foul-smelling mouth, 37 Beit Shmuel, SA EH 154:9 in the name of Rosh; Hatam Sofer , supra n. 18 in the name of Ra'avyah; Maharam of Rothenberg, supra n. 16; Teshuvot Maharit 1:14; Maharal Zunz , supra n. 24; Agudat Eizov, supra n. 24. others simply posit it as a major flaw unrelated to the issue whether one may coerce a get due to this flaw. In other words, even those decisors who may contend that there are no grounds to issue a get compulsion order regarding an epileptic husband, there would still remain a basis to argue that it is a major defect ( mum gadol ). | {
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In sum, whether a particular illness or behavior is to be labeled a major defect is contingent upon the fact that it serves as grounds for get coercion. In the event a get ought to be compelled in a particular circumstance therefore we classify the behavior or illness as a major flaw and under certain conditions the marriage may be voided. On the other hand, should there be no grounds for get compulsion, the defect is minor. | {
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On the other hand, even in the absence of a mandate for get coercion in our case, a husband who suffers from epilepsy possesses a major defect due to the fact that people consider it to be a major defect. 38 See also PDR 8:216, 220. In the words of Rabbi Yitzhak Elhanan Spektor of nineteenth century Kovno, a major defect (a mum gadol ) is decided by societal consensus (" heskem bnei ha-medinah "). 39 Teshuvot Ein Yitzhak 1, EH 24:38. For precedents of this posture, see Rabbi Hai Gaon, Sefer Mekah u-Memkar , Sha'ar 45; Hiddushei ha-Rashba, Ketuvot 72b, Hiddushei ha-Ran, Ketuvot 33a in the name of Rambam, and Helkat Mehokeik, SA EH 39:1 in the name of Ran. In other words, the model of a mistaken sales transaction (a mekah ta'ut ) is applied towards defining a husband's major flaw concerning establishing a mistaken marriage. As we know, anything that the majority of the community considers to be a defect in an item, if said defect is neither obvious nor disclosed to the buyer prior to the purchase, it generates a buyer's right to void the sale. Similarly, numerous legists contend that any defect viewed by society that relates to the essence of the marriage and/or its ongoing stability is to be understood as a major defect and therefore, under certain prescribed conditions, one may free an agunah from her marriage without the requisite need of a get . 40 Teshuvot Beit ha-Levi 3:3; Teshuvot She'erit Yosef 44; Teshuvot Avnei Hefetz 30; Teshuvot Iggerot Moshe EH 4:13, 113, 121 ( yibum ). | {
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In the wake of an illness or a condition not enumerated in the Mishnaic or Talmudic list or being derived by applying analogical reasoning from the illnesses and conditions mentioned on the list, we may distill the above definition of a major flaw from the eloquent words of Rabbi Shlomo Daichovsky. | {
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Rabbi Shlomo Daichovsky, a former Presiding Dayan of Beit Din ha-Rabbani ha-Gadol, the highest rabbinical court under Israel's Chief Rabbinate, elucidates as follows: 41 File no. 1-22-1510, Beit Din ha-Rabbani ha-Gadol, 7.9.2004. | {
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The subject of defects in respect to which a wife can demand her get is not Scriptural law, but a question of reasoning and logic, as Rambam opines in Hil. Ishut 25:2: "These matters are concepts that reason dictates; they are not decrees of the Torah." The entire subject of blemishes is one relating to human reason and mental unwillingness to tolerate an unbearable situation on the part of the other spouse. We therefore have the halakhah of "he considered and accepted" or "she considered and accepted." It may be said that if people's attitude changes with respect to a particular defect, it cannot then be said that "she considered and accepted" on the basis of her past agreement. A defect need not necessarily be in the physical sphere: a behavioral defect, such as procuring harlots, also entails an obligation to give a get . And indeed, this halakhah relating to the procurer of harlots appears in the Shulhan Arukh (EH – AYW) 154, which is the section dealing with defects. In all civilized countries, it is extremely humiliating for a wife to have her bed shared by another, and a man who marries a second wife will be obligated to give the first wife a get , not only due to the ban of Rabbeinu Gershom, but also due to the humiliation and the defect that it involves. The parties came from Yemen, where it was acceptable to have two wives. Here this is considered a great humiliation and should be seen as a major defect. The past consent of the wife does not obligate her today, so it is not only a matter of "he is repulsive to me," but also a matter of a defect in the husband which makes the wife unable to live with him. When it is a matter of divorce due to a defect, the wife should not forfeit her ketubah . It is likely that even if the woman married a man who is a "procurer of harlots," and she later repented and returned to the religious fold, and she can no longer tolerate the situation, the husband will be obligated to give her a get , and he will not be able to argue that she considered and accepted. And it similarly appears to me that the claim that she considered and accepted cannot be made in relation to a wife who married a husband who engaged in homosexual conduct in (her) full knowledge of the situation, and later she learnt about the gravity of the prohibition and wishes to divorce him because the husband is repugnant to her. Here, too, it cannot be claimed that she considered and accepted. | {
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Therefore, the many decisors who advocate get coercion or only obligate a get in our case are implicitly arguing that society considers the illness of epilepsy to be a major flaw in sustaining a marriage. | {
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On the other hand, is there a basis for contending that if a husband fails to disclose prior to the marriage that he is suffering from epilepsy (and subsequently is recalcitrant concerning the get ), that we can construe this marriage as a mistaken marriage and thus permit the woman to be free without a get ? Addressing the above scenario, Rabbi Spektor argues that one can advance this claim as a supporting argument (a senif ) rather than as an independent reason to void the marriage due to the existence of an error. 42 Teshuvot Ein Yitzhak 1, EH 23 (26). Yet, regarding other flaws, Rabbi Spektor concludes that there are grounds to deploy the technique of a mistaken marriage as an avenue to void a marriage. 43 Ein Yitzhak , supra n. 42, at 24. Moreover, given that a person suffering from epilepsy is in the halakhic category of sometimes healthy and sometimes mentally incompetent 44 Ein Yitzhak , supra n. 42 at 27. (" itim halim, itim shoteh " 45 Tosefta Terumot 1:3; Rosh Hashanah 28a; Ketuvot 20a; Yerushalmi Gittin 7:1. ), therefore two doubts emerge. One doubt is that possibly at the time of the kiddushin he was mentally incompetent (a shoteh ), and if you want to claim he was healthy, possibly during the divorce he was healthy. However, in order for a double doubt to be effective, to trump the status of her being a married woman, Rabbi Spektor claims that the two uncertainties which entail factual uncertainty (i.e. his state of health at the time of the marriage and divorce) must emerge at the same time. 46 Magen Avraham OH 439:3; Ein Yitzhak , supra n. 42. On the other hand, a double doubt which emerges due to halakhic uncertainty does not need to arise at the same time. See Ein Yitzhak , ibid; Teshuvot Yabia Omer 5, OH 6 (5). In this case, one emerges at the time of the kiddushin while the second one arises at the time of divorce. As such, the implementation of a double uncertainty is inapplicable and therefore one cannot void the marriage. | {
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A similar determination is promulgated in nineteenth century Lithuania, including Brisk, Minsk and Volozhin when Rabbi Yosef-Baer Soloveitchik (known by the title of his work: Beit ha-Levi) states: 47 Beit ha-Levi , supra n. 40. | {
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Nonetheless, there are no grounds to say that we can free her without a get , since this case is no better than where we discover a defect in the woman, as is elucidated in sections 38 and 39 (Shulhan Arukh, Even ha-Ezer – AYW) that an unconditional engagement ( kiddushin – to a man who subsequently is found to have defects – AYW) mandates a Jewish divorce due to a doubt (a get mi-safek ). Similarly, when there is an unconditional engagement and marriage, it is viewed as a doubtful marriage and not a mistaken transaction, and a Jewish divorce due to a doubt is required . . . and this is also the result when other major blemishes are discovered in the husband. | {
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During the same century in Lvov, Rabbi Aryeh Leibish Horowitz recognizes the severity of the illness and therefore mandates get coercion. However, explicitly relying upon Hatam Sofer, 48 Teshuvot Hatam Sofer EH 1:82. Rabbi Horowitz offers the identical reasoning as Beit ha-Levi for refraining from voiding the marriage. 49 Teshuvot Harei Besamim 5:29. | {
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On the other hand, in Brisk, Warsaw and Lvov of the nineteenth century, upon addressing the case of a deceased husband suffering from epilepsy and a missing levirate brother-in-law, Rabbi Zvi Hirsch Orenstein contends that in theory (le'halakhah ), the childless widow is permitted to marry without halitzah due to the fact that this illness is similar to other defects that: | {
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are major blemishes . . . but also due to the fact that nobody cannot tolerate them due to their repulsiveness and foul smell . . . Thus, concerning these defects it is not relevant to state that "a woman is satisfied with anything." And so also with this present case . . . the marriage ought to be voided based upon a mistaken transaction. | {
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Despite the fact that Rabbi Orenstein feels that we should not be stringent in this matter, nevertheless, in practice (" le-ma'aseh ") he refrained from permitting the wife to marry without a release from a levirate marriage ( halitzah ). 50 Teshuvot Birkat Retzeh 109. Though Rabbi Orenstein's ruling deals with a case of levirate marriage ( yibbum ), nevertheless one can analogize from a matter of levirate marriage to a matter of marriage. See Teshuvot Terumat ha-Deshen 250; Teshuvot Noda be-Yehudah Mahadura Tinyana EH 66 (Cf. Noda be-Yehudah, Mahadura Kama OH 21; Teshuvot Har Tzvi EH 1:95, 99. See further this writer's Rabbinic Authority , vol. 3, 154, n. 44 and infra Chapter 4H, n. 44. | {
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On the other hand, Rabbi Yitzhak ben Meir, the author of Sha'arei Durah and student of Rosh, expounds: 51 Teshuvot ha-Rosh 42:1. | {
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My teacher ha-Rav Asher wrote and I agree, that there is no major blemish like an epileptic, since we compare, in the chapter Ha-omnim (Bava Metzia 80a), the epileptic to a mentally dysfunctional . . . if one sold a cow to his neighbor, etc. (and failed to specify that he had a defect – AYW) it is a mistaken transaction . . . And a mentally dysfunctional individual cannot execute kiddushin (betrothal – AYW) and marriage even on a rabbinic level . . . No one can live with a serpent in the same basket. Even though sometimes there is kiddushin when he is healthy, and an epileptic if he is not always (manifest as) an epileptic can execute kiddushin . . . . Additionally, possibly she was an epileptic prior to the kiddushin and . . . it was a mistaken transaction. | {
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In light of the foregoing, we can distill five points in Rosh's posture as understood by his student, Rabbi Yitzhak ben Meir. Firstly, epilepsy is a major defect. Secondly, the Talmud compares an epileptic to a mentally dysfunctional person. 52 Whether being a mentally incompetent person is psychologically more devastating than being an epileptic is subject to debate. See Maharit , supra n. 24; Teshuvot ha-Bah 93; Divrei Hayyim , infra n. 53; Minhat Pitim EH 119. However, others will arrive at a different conclusion depending on the severity of the shoteh -like conduct. See Teshuvot Maharhash EH 33; Teshuvot Ne'eman Shmuel 66. Moreover, as Talmud Yevamot 112b taught in light of the metaphoric principle that "a person cannot live with a serpent in the same basket," Torah scholars legislated that a mentally dysfunctional person can neither execute kiddushin on a biblical level nor on a rabbinic level. Furthermore, as others contend, an epileptic is to be subsumed in the category of sometimes healthy and sometimes mentally incompetent. 53 Beit Yosef, Tur EH 121 in the name of Rashba; Maharhash , supra n. 52; Teshuvot Divrei Hayyim EH 1:50; Teshuvot Divrei Yosef 2, EH 5. Similar to a mentally dysfunctional individual, sometimes an epileptic can exhibit rational behavior and sometimes he can be mentally dysfunctional. Moreover, failing to disclose that he suffered from epilepsy constitutes deception, and in the mind of Rosh is to be labeled as "an improper kiddushin " ( kiddushin she'lo ke'hogen ) similar to the Talmudic instance of a man who was married to a minor, a marriage which was valid rabbinically. Upon reaching maturity, a third party kidnapped her and married her. Due to the inappropriate behavior of the second husband, the Sages permitted her to remain married to the first husband and annulled the second marriage. 54 Talmud Yevamot 110a. Similarly, Rosh argues that the husband's failure to disclose his illness was inappropriate and therefore the marriage ought to be voided. 55 Subsequently, both Beit Shmuel and Hatam Sofer concur with Rosh's analogy of the deceptive husband who failed to disclose his medical condition prior to the marriage to the case of the kidnapper who swooped down and married a young girl who was married, albeit rabbinically, to somebody else. See Beit Shmuel SA EH 117:24; Hatam Sofer , supra n. 18. Maharit and Hazon Ish aptly note that the cases are readily distinguishable. Whereas the case recorded in the Talmud deals with a man's inappropriate behavior at the time of establishing the act of kiddushin , the issue here is of a man's conduct, intentionally misrepresenting himself to his prospective wife. See Teshuvot Maharit 2:40; Hazon Ish EH 69:23. For an attempt to demonstrate the similarity of the cases, see File no. 860977/1, Netanya Regional Beit Din, May 20, 2013. Whereas Rabbi Yitzhak ben Meir concludes that epilepsy is a major defect, his teacher Rosh proceeds one step further and resolves that given the severity of his flaw, should he fail to disclose it to his spouse prior to the marriage, his marriage may be voided based upon upon "a marriage in error" ( kiddushei ta'ut ). 56 S. Karelitz, Teshuvot Ateret Shlomo 1:30 in the name of Rosh. | {
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