We begin with the question of whether or not a minor girl requires a bill of divorce if she has had sexual intercourse with her husband. Can she just walk away? In today's context, that would seem to be a good option. But in the times of the Talmud, walking away without one's get was walking away with absolutely nothing. The rabbis liken this to other cases where a condition is set in the husband's mind at betrothal, but the couple has sexual intercourse before the condition has been met. In that case, the woman is given a divorce; in this case, the minor girl too should be given a divorce.
But isn't this case the same as one already argued by Rav and Shmuel (where Rav argues for the divorce)? The rabbis share some interesting ideas about how this case is different.
A new Mishna teaches about conditions for chalitza, yibum, rival wives, and divorce in cases where a man marries two minor girls, a minor girl and a "deaf-mute"(sic), a minor and a halachically competent adult woman. The Mishna suggests that consummation or chalitza will exempt the rival wife from yibum or chalitza if the wives are both minors or deaf and mute. However, if one wife is a minor or a deaf-mute and the other wife is a competent adult, chalitza/yibum cannot exempt the adult. Similarly, if the yevam performs chalitza with the adult woman, this does exempt the minor/the wife who is deaf and mute.
The principle seems to be that only a competent woman's actions can affect other rival wives. Those who are not legally competent do not have the power to exempt those who are legally competent.
The Gemara takes on the question of who is permitted to perform chalitza. A man who is deaf and mute? A woman who is deaf and mute? A woman who would be performing chalitza on a minor boy? Further, does it make a difference if the person who is deaf and mute became that way after marriage? And if chalitza is not allowed, what is one to do when the marriage is unsuitable? The rabbis suggest the option of consummating the marriage and then getting divorced. Today, this sounds like a radical suggestion. Then again, chalitza is a pretty radical concept, too.
Part of these considerations focus on what is Torah law and what is rabbinic law. For example, we learn that a man who becomes mentally incompetent or deaf and mute while in his marriage can never divorce his wife. If he was competent at the time that he married her, he cannot change his mind while halachically incompetent. This sentences a woman to life with a challenging husband. Again, in Talmudic times, a woman was thought to be financially and socially 'protected' when she was married. Thus this halacha may have seemed to be based in compassion.
As an aside, we learn that if she becomes mentally incompetent, he may not divorce her. If he becomes mentally incompetent, he may never divorce her. I take this to mean that "not" implies "at the present time". "Never" suggests that there is no time at all where divorce will be an option.
Our daf ends with a discussion about whether a yavam might prefer a minor or a woman who is deaf and mute. A minor will eventually become competent, but she might leave. A woman who is deaf and mute is not competent, but she will be available for sexual activity. The rabbis suggest that she would be more 'complete' for him; a full acquisition. Marriage to a minor girl might be called a 'partial acquisition'. If these women were rival wives, would yibum with one of them exempt the other?
We are discussing girls/women who were extremely vulnerable. Today, there are many laws that have been created to protect women from these sorts of behaviour, which often would lead to terrible harm. Just the notion of being a man's belonging is off-putting to modern thinkers. So I question the text: were these laws actually thought to be an interpretation of G-d's intentions in the Torah? Were they meant to maintain social structures? Were they intended to protect women? Were they intended to protect men and by extension their belongings?
Posts
No comments:
Post a Comment