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August 3, 2015 / 18 Av, 5775
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Justice For The Agunah

Halacha is determined to find a way to free a married woman from remaining in a perpetual state of limbo.
Justice for the Agunah.

Justice for the Agunah.

Not every marriage is successful. Despite our desire for each to be perfect, we know the truth is there are hundreds of reasons a man and a woman, once joined in love and joy, should no longer remain together. When that happens, Judaism recognizes the need to let the marriage come to an end in a way that allows both husband and wife to grieve for what could have been but wasn’t and then go forward with a productive and meaningful life.

The Torah envisions the reality of our deepest relationships by providing both the road map for marriage – the ketubah – and the mechanism for ending a marriage – the get.

In recent months and years we’ve heard more and more of men – learned, yeshiva-taught men – who withhold gitten from their wives; wives who have a God-given right to be released from their failed marriages. Such cruelty by such men damns these agunot to a non-life.

And it is wrong. Just how wrong can be clearly understood by an examination of the beis din’s elevated role in the community and the holiness of Shabbos and Yom Tov. Simply consider that a beis din does not convene on Shabbos or Yom Tov. At first glance, this would seem obvious. However, it is closed not only for judgment but also for deliberations among the dayanim (judges), even though one could suggest that dayanim deliberating without issuing piskei din (decisions) is little different from talmud Torah.

The Talmud, in Masechet Beitzah (37a), teaches that a beis din does not issue judgments on Shabbos and Yom Tov lest the dayanim be prompted to write p’sak din and thereby transgress the prohibition of ketivah (writing).

The role of the beis din, however, is not only to rule but also to mete out punishment. Further, it is empowered to imprison one whom the dayanim suspect may escape in order to avoid appropriate punishment. It would seem that these beis din actions would be excluded from the Talmud’s prohibition of lo danin, not to issue rulings. These responsibilities and actions require no writing. Yet, quoting Shibolei Haleket,the Rema rules that it is prohibited to punish or imprison on Shabbos and Yom Tov, a ruling founded not on the Talmud’s positions on danin but rather because God ordained that punishments cease on Shabbos and Yom Tov.

As Rambam teaches (Hilchot Shabbat 23:14), “we do not punish on the Shabbos…. if one was sentenced to lashings or to death, we do not mete out the lashings (malkos) or execute him on the Shabbos…” The Shibolei Haleket further ruled that it is likewise forbidden to imprison one who the dayanim fear may try to escape punishment – because imprisonment is also a form of punishment.

The Sefer Hachinuch (Vayakhel) explains the basis of this principle that all are gifted with a day of rest: “…It was the will of God to honor this day, that all should find rest in it, even the sinners and the guilty. A parable teaches that a great king summoned the people of the country to a one-day feast; a feast when he would invite every man, bar none, to the celebration even though immediately after the feast day he would sit in judgment (of some who were present at the feast). So in this matter, Hashem commanded us to hallow and honor the Shabbos day for our good and our merit.”

Even the administration of punishment that may not entail any Chillul Shabbos is forbidden on Shabbos. To imprison one who otherwise might escape punishment is not deliberation of law; it is not adjudication of law, which is rabbinically forbidden; it is not administering punishment, which is biblically forbidden. Yet it is subsumed in the logic and grace of the prohibition to administer punishments – so that all may equally enjoy God’s desire for all to rest, whoever they are.

About the Author: Rabbi Dr. Eliyahu Safran is an educator, author and lecturer. He can be reached at e1948s@aol.com.


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2 Responses to “Justice For The Agunah”

  1. Not sure why you can't approach this topic with any intellectual honesty. ChaZal spoke of agunos, women whose husbands had disappeared. There's no such halacha for a moredes and Rav Moshe Feinstein quoted the simple din that someone who went to arkaos has no rights in front of a Beis Din with regard to a get.

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