Volume 19 Number 80
Produced: Wed May 31 23:21:35 1995
Subjects Discussed In This Issue:
Betrothal of Minors
[Chaim Wasserman]
Child brides
[Akiva Miller]
Child Brides
[Avi Feldblum]
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From: <Chaimwass@...> (Chaim Wasserman)
Date: Wed, 31 May 1995 00:40:00 -0400
Subject: Betrothal of Minors
Kudos to mail-jewish for having such a quick forum and response to one
of the ugliest halachic problems to surface in many decades.
For those interested in sources to peruse over Shavuot especially, I
recommend the following:
[1] The question of whether these days a father is precluded according
to halacha [issur] from initiating kiddushin on a minor daughter can be
found in the Otzar HaPoskim, volume 12 starting with the side after
p.160. For those who do not have access to this reference work, you may
want to start with Shulchan Aruch, Even HaEzer, 37,8.
Here we have a case of halachah as opposed to the proverbial "fifth
section of Shulchan Aruch" the section dealing with common-sense and
priopriety. For while the Torah explicitly accomodates for the betrothal
of a minor there is clear evidence to restrict the exercise of this
right with but few exceptions, depending on very specific circumstances.
[2] Bet din has the unmistaken ability to expropriate the money given by
the father to the so-called husband based on the well known principle of
the g'mara [Yevamot 106b and Gittin 33a, and elsewhere as well]. This
would make great conversation on the first night of Shavuot especially
since there is a chance to rest on Shabbat afternoon.
[3] Clearly, our legal resources should immediately take the lead to
initiate severe sanctions in the appropriate courts against all of those
invloved in such a scam. I mean the rabbis who have allowed for these
ideas to suddenly be implemented, the witnesses who were involved and
the father for endangering the welfare of his minor child. Surely, we
will not touch the "paramour" because of the obvious halachic problems
that could result if he chooses not to give this child a get. For him
there should be instant excommunication.
[4] There is an ancillary problem to this discussion which should be
addressed at a later time. To wit: It is well known that in major
segments of the chassidic community there is a disdain for obtaining a
civil marriage license. From a Torah point of view, especially since
Napolean instisted upon civil marriages, it is quite easy to appreciate
why those with religious fervor shun the procedure. Legal minds (with
halachic commitment) ought to also address this problem to see if
something can be done to "convince" these circles that it is
inappropriate, as the Yiddish saying goes "to make Shabbos for one self"
in the case of marriage and divorce.
[5] Finally, my severest suggestion would be pointed at those spiritual
mentors (and they can be readily identified) who have been accomplice to
and perhaps have even ignited some 20 fathers to consider such a
dastardly scheme.
Chaim Wasserman
Young Israel of Passaic-Clifton
<chaimwass@...>
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From: <Keeves@...> (Akiva Miller)
Date: Tue, 30 May 1995 20:59:47 -0400
Subject: Child brides
Part of my posting in 19#74 may have been misunderstood by some
posters. Two very good friends of mine asked the following:
>...Just one question... how can you call
>this action of the father an atrocity if the Torah (or perhaps, the
>rabbis) sanctioned the act of the father being able to marry off the
>daughter when she is a minor? You know us ... of course we agree with
>your perception of this act; we are wondering how you view it on another
>level altogether... Where is the justice in allowing the father in
>having this kind of control over a girl in the first place?
Good questions. Among the details which I omitted in my first posting
was that the father can do this only if his daughter is still below the
age of bas mitzvah. (I have heard that the cutoff age might be 12 1/2,
in which case I will have to retract the remainder of this
paragraph. But I think the real cutoff is age 12.) Almost all areas of
halacha, both financial and ritual, give much less significance to the
actions of a minor than the actions of an adult. Accordingly, a boy
below bar mitzvah age cannot enter into a marriage. Under normal
circumstances, a girl below 12 would not be able to either. In His mercy
and wisdom, G-d provided a means by which young girls could get married,
and this has saved many a girl from being raped by various government
officials through the ages, for they would force themselves upon single
or engaged girls, but not married ones. There were other situations as
well, where it was beneficial for one's daughter to marry as early as
possible, and the Torah gave the father (who is an adult) to do this on
his daughter's behalf.
The reason I feel justified in calling the current situation an
"atrocity" is NOT because the Torah gives this awesome power to
fathers. G-d forbid that I should refer to a halacha as atrocious, and I
apologize publicly for giving that impression. Rather, it is the action
of these individuals which I condemn. The Torah presumed that the father
would do such a thing only when in the best interests of his
daughter. But this father does not seem to care about his daughter's
interests.
I say "seem" because we must admit that there are some men who engage in
these tactics *not* for reasons of financial extortion, but because they
sincerely believe that their marriage can be saved, and is worth
saving. Some of them might even be correct. If in previous generations
the stigma on divorce was so great that people stayed together even
though they'd have been better off apart, then we must admit that
divorce is so acceptable today that some people may be getting divorced
even though they might be better off staying together.
I accept the claim of those in the various Aguna organizations, that
most who withhold a get do so for dishonorable reasons. But any sweeping
general rules which are instituted must allow for the minority of cases
where the withholding is justified.
That is why my approach to this situation concentrates what this father
is doing to his daughter. Consider carefully what this father is doing:
He is holding a hostage (namely, his daughter's ability to marry) until
and unless his demands are met. What are those demands, and what will he
do if/when this ransom is paid? If those demands are simply financial,
then it is clearly a case of selfishness where he is not doing this in
the interests of his daughter. If his concern is that his family be kept
together, then we must admit that his *motivation* is noble, and in his
daughter's best interest, even if we disagree about whether the family
really should stay together or not. But in this case, when will his
demands ever be met? How long does he plan to keep the family together?
It seems to me that there would be no limit; for as long as the mother
remains alive, the father would want to stay married to her. And for
that entire length of time, the father will refuse to divulge the name
of the daughter's "husband".
This seems to be an example of a "mima nafshach", best translated as a
"catch-22". For even if the father thinks that he is doing this for
truly honorable reasons, we have proven that he is actually doing it for
dishonorable reasons, with no interest in what is truly best for his
daughter. And it is on these grounds that I seek to annul his actions.
Zvi Weiss made a very strong point. He said that the halacha is that the
father can marry his daughter off even to an ugly man. I would like to
see the source for this. Even people who are physically ugly can have
other good qualities. Such a marriage could still be in the daughter's
best interest. Let's compare this to the laws of conversion. For
example, if a non-Jewish girl is converted to Judaism, upon her Bas
Mitzvah she can declare that she does *not* want to be Jewish; those who
converted her were therefore mistaken about this being in her best
interests, and so the conversion is retroactively null and void. Can
this apply to our case as well? My guess is that it does not apply, and
that she cannot undo it upon adulthood, because if she could, then this
idea would have been unworkable from the start.
He also suggested that my proposal is unworkable because witnesses must
do sins as bad as robbery in order to be invalidated. If I understand
him correctly, then let's examine the example of a Kohen who marries a
divorcee. Such a marriage is forbidden by the Torah, yet if it takes
place, it *is* valid. The witnesses are *not* disqualified simply
because they participated in this forbidden wedding. But in our case, I
propose, the witnesses *can* be invalidated. Are they not guilty of
stealing this girl's future? May I suggest that the crime being
perpetrated upon the daughter is significantly more obvious and severe
than the sin of a kohen who marries a divorcee, and that the witnesses
*can* be disqualified in our case.
Heather Luntz pointed out something that almost knocked me out of my
seat. No actual wedding needs to have ever taken place, she said. And
she is correct. All the father needs to do is to CLAIM that he married
his daughter off, and the halacha says that he must be believed, thus
forbidding the daughter to ever marry. So there are no witnesses to
disqualify!!! At second glance, however, his statement that he married
her off inherently includes the idea that valid witnesses were present,
and so I think that my logic still stands, for we can invalidate them
even though we do not know who they are. Heather, thank you for
specifying your sources. I plan to learn them tonight.
Zvi Weiss also raised the idea that the father's statement might be
meaningless without specifying who "this man" is, to whom "I gave my
daughter". I just want to say that this idea seems to have potential as
well. Rabbis? What do *you* think?
As always, I am using this soapbox only as a means of spreading my ideas
to the Torah authorities, so that they may consider them, and rule on
them, and guide us to the path in which we will go. Meanwhile, let us
all pray for HaShem's help in strengthening our homes, so we may all
live in loving families, and these plagues will be extinguished.
Akiva Miller
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From: Avi Feldblum <feldblum>
Date: Wed, 31 May 1995 23:18:50 -0400
Subject: Child Brides
There have been several messages that have come in either asking what
exactly we are talking about here, i.e. what exactly has happened, or
asking why are we so worried about this, the child can simply refuse -
be me'ayain, and the marriage is thereby annuled.
OK, here is my understanding based largely on the New York Times article:
Israel Goldstein, 39, had been locked in a divorce battle with his wife,
Gita, for about three years. In late 1993, he learned about the ability
of a father to betroth his minor daughter, and realized he could use
that as a weapon in his battle. He found a bridegroom and two witnesses
willing to remain anonymous and went before a rabbinical court to
announce that his daughter must now be considered a married woman. In
effect, he has doomed the girl, who can marry no one else unless he
relents, to lifelong spinsterhood in an Orthodox Jewish community where
marriage and children are paramount. He is now using this as blackmail
to try and win custody back of his kids (I think, his particular
motivation/tactics are not fully clear to me).
Shalom Bayis, or Peace of he Home, an Orthodox anti-divorce organization
(anyone know anything about them?) put up fliers in Brooklyn and Queens
denouncing divorce and civil court proceedings, describing the minor
betrothals and giving the group's phone number. They say that about 20
men have made use of this through their help. They claim the backing of
100 rabbis and 40 volunteers.
Basically, what I gather from what I have seen, these individuals are
willing to ruthlessly use their daughters as pawns to gain concessions
from their wives, on the assumption that the wives, as mothers, will do
anything to prevent this tragedy from occuring to their daughters. I
would assume that it would be large monetary concessions and/or custody
issues.
To focus now on the Halachot: Heather earlier gave many of the sources,
although some of the information is spread over a number of halachot in
both the Rambam and Shulchan Aruch (I have not had a chance to look over
the commentaries, and do not have the sources to make any sort of
comprehensive study, I look forward to others on this list who may put
together a fuller list of sources).
1) The Torah gives the ability to the father of a ketana to marry off
his daughter, from the time of birth till she becomes a bogeret (12
1/2). This can be done without the consent of the girl (shelo midaata).
This marriage is fully valid from Torah law, so it requires a Get to
end. After getting such a Get, the girl would be forbidden to marry a
Cohen.
[Even HaEzer 37 1]
1a) The Mechaber says it is a mitzva not to do so, the Ramah says that
under the circumstances where he lived (based on a Tosafot) the custom
was to do so, because it was in the girl and family interest.
[Even HaEzer 37 8]
2) Under certain circumstances, (either the death of the father or if
the father marries her as a child and she gets divorced/widowed from
that marriage before she is 12 1/2) the Rabbis gave the right to a minor
girl to accept her own kedushin. This action has NO validity from
D'Oraita level. I've always thought that it was the mother and brothers
who had this right, and the commentators refer to the mother and
brothers marrying her off, but I can't find that explicitly in the
Shulchan Aruch.
[A bit tough to find for me, probably I'm overlooking something. Best I
can find is Even HaEzer 155 1]
This marriage only has Rabbinic validity, and thus does not require a
Get to end this relationship. At any point before the girl turns 12 1/2,
she can say that she does not want to continue this relationship, and
then walk away from her husband. This is called "me'yuen" and this has
the effect of annuling completely the original marriage, and she WOULD
be permitted to marry a Cohen.
[Even HaEzer 155]
If the girl continues to live with her husband after she turns 12 1/2,
the act of living with her husband turns the Rabbinic level of marriage
to D'Oraita, and she would require a Get.
[Even HaEzer 155 21,22]
2a) If the father is alive, but leaves town, then the Mechaber brings
down two opinions as to whether her mother can betroth the girl. The
Ramah then brings down a case where following a divorce, the father gave
full custody to the mother of the children, she then married off the
minor girl, and the father then objected to the marriage. The court
ruled that if he had given explicit permission to the mother to marry
her off even as a child, then he can not object.
[Even HaEzer 37 14]
3) There is a Halakha brought down by the Rambam and the Shulchan Aruch,
based on a Gemarah, that if the father says that he married off his
daughter, but he does not know to whom, then she becomes an Agunah and is
forbidden to marry forever.
[Even HaEzer 37 20]
The extension of this that is being used is that instead of a tragic
situation where the father knows that he married her off but has no idea
of to whom, these individuals are deliberately setting up the case where
the marriage is set up, but the information about it is not being
released, or even not actually even going through with the marriage, but
just lying to Beit Din (what is one more improper action?).
OK, I think this is long enough, and if I do not stop, I will not get
any mail-jewish out tonight.
Avi Feldblum
Shamash Facilitator and mail-jewish Moderator
<mljewish@...> or feldblum@cnj.digex.net
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End of Volume 19 Issue 80
