B’Inyan Kefiyyeh b’Gittin shel Nichpeh: Coercion in Gittin of an Epileptic

The Gemara speaks of several categories of mumim — defects — among them the nichpeh, or epileptic. Bechoros 44b explains that one of the pesulim which invalidate a kohen for the avodah is epilepsy, even infrequently (nichpeh afilu achat l’yamim). Rabbenu Ovadia m’Bartenura comments: Nichpeh (nofel machmat cholei); she’eino nofal tadir ela pa’am achat l’zman merubah. Epilepsy is understood as the “falling sickness,” the individual is pasul from serving in the Beis haMikdash all his days, even if he only had a single seizure. A woman who has relations in a mill (Kesubos 60b), a man who has relations immediately after defecation (Gittin 70a), or who has relations by the light of a lamp (Pesachim 112b) are all said to have children who will be epileptics. The gemara, Bava Metzia 80a, says that an epileptic is equated to a shoteh: there, the beraisa states that if Reuven sold a shifchah to Shimon and says to him, she is a shoteh, an epileptic, meshuamemes (crazy), but in reality she had only one defect and he inserted it among the other defects, this is a mistaken transaction (mekach taus). But if the seller stated: The maidservant has this defect, i.e., the defect that she in fact has, and other defects, without specifying what they were, this is not a mistaken transaction.

The gemara, Kesubos 77a, explains that there are various mumim, defects which necessitate divorce. The Mishnah says, the chachamim say that this applies only to mumim in hidden places. But he cannot claim to have been unaware of visible mumim). Rav Nachman said, a nichphah (female epileptic) is considered k’mumin she’b’seter, a hidden mum, since it is possible that nobody is aware of her ailment.  The Gemara comments: And this applies only if the sickness comes at regular intervals, as the woman and her family can conceal her illness. But if the attacks do not appear at regular intervals and can occur at any time, this is considered like a visible blemish, as it is impossible that her condition is unknown to others.  If a woman has epileptic fits, this is considered a hidden Mum. This is if it comes at fixed times (she is careful to be secluded at these times). If not, it is like an exposed Mum. If the disease was not disclosed ahead of time, and the husband discovers after marriage that his wife suffers from this disease, the husband can claim that the marriage was a mekach taus (an erroneous contract), and the woman leaves without her kesuba. While claiming mekach taus in gittin is generally a very high bar to attain, a wife who is a nichpah seemingly qualifies as a mum gadol for which one can claim mekach taus, and thus, the husband can request nullification of the marriage, after discovering that the wife concealed her status as an epileptic. The argument certainly would also apply in a case where the wife discovers the husband is an epileptic.

There is a machlokes rishonim as to the halacha when the husband discovers the epilepsy (or whether the wife discovers his epilepsy, and whether beis din can compel him to give her a get). A husband with epilepsy is to be treated as a case not addressed directly by the Talmud for the purposes of understanding the Rosh.

The Mordechai (Kesubos 7, siman 201) writes in the name of the Raaviya: “Even though epilepsy by the woman is a Mum, from here is no proof to consider this a Mum by the man, because whatever the case, a wife is content. You can know this because it does not state “epileptic” in the Mishnah concerning Mumim of the man, and we do not have the power to force [divorce] without a clear proof. However, we also will not force her to be with him, since she comes “on account of a claim” (namely, her reasoning for not wanting to be with him).” The Mordechai thus is of the shita that we do not advocate compulsion (keffiyeh) to effect a divorce in the case of epilepsy.

The Teshuvos ha Rosh (42:1) cites a psak of Rabbeinu Gershom Meor haGolah, who wrote that we force the epileptic to divorce because this is a severe Mum like the odor of the nose and the like (the Mishna, Kesubos 77a, explains that mumim for which beis din requires the husband to give his wife a get include one afflicted with boils; or one who has a polyp; or one who works as a gatherer, or one who works as a melder of copper, or one who works as a tanner of hides, all of whose work involves handling foul-smelling materials, whether he had these mumim before marriage, or developed them after marriage. Rav Yehuda said that Shmuel said that one who has a polyp is one as a foul odor of the nose. It was taught in a baraisa: A polyp is a foul odor of the mouth. Rav Asi teaches the reverse, that Shmuel is the one who said a polyp is odor of the mouth.)

The Rosh accepts this shita, that epilepsy is like the other mumim mentioned there, and he directs his attention to three chachamim. R’ Chaim ben Yosef is choshesh for the Raviya’s opinion (and unlike the Rosh here).

R’ Yitzchak ben Meir agreed with him and even strengthened his words from the Gemara in Baba Metzia 80a (quoted above) that equated an epileptic shifchah to a Shoteh. (There is a further proof for this position in the words of the Rambam, Hilchos Edus 9:9. There, the Rambam says that an epileptic can be seen like a shoteh as a psul edus- an epileptic in the midst of a seizure is pasul, but when he is healthy, he is rauy. “This applies both with regard to an epileptic who has seizures only infrequently and one who continuously has seizures without having a fixed time for them, provided his mind is not continuously confused. For there are epileptics whose minds are disturbed even when they are healthy. One must ponder much before accepting testimony from epileptics,” Vetzarich lehityashav be’edut hannichpim harbeh. In his Perush haMishnayos (Gittin 7:1), the Rambam associates Kordiakos, a state of being affected by spirits of the “new wine of the vat”, with epilepsy, compared to Rashi (Gittin 67b), who believes Kordiakos to be a demon who rules in a person who drinks too much wine from the vat. The Rambam there writes that Kordiakos is “an illness that occurs as a result of filling the chambers of the brain, and the mind becomes confused therefrom, for it is one of the varieties of nofel machmat cholei, falling illness.”)

The third shita the Rosh quotes is R’ Mordechai ben Yosef, who agrees with the Rosh l’halacha (that we treat the epilepsy as a mum gadol and sufficient grounds for keffiyeh), and who adds another reason. He says that relations with an epileptic are dangerous, and therefore he should be forced to divorce as is a mukeh shechin (one afflicted with boils/leprosy, mentioned as a psul in the Mishna, Kesubos 77a), for whom intercourse is dangerous.

The Rema, Even haEzer 154:5, brings both shitos of the Rosh and Mordechai: Mi shehu nichpeh, yesh omerim she’eino mum ve’ein kofin al zeh legaresh. Umikkol makom ein kofin otah shettihyeh imo, ho’il uvatah mechamat ta’anah (Mordechai, perek hamedir beshem Raviyah). Veyesh omerim dehavei mum  ba’ish, vekofin legaresh (Rosh, klal 42). An epileptic, some say that it is not a blemish, and we do not force him to divorce. On the other hand, we do not force her to be with him, since she has a [reasonable] claim (Mordechai, chapter haMadir, in the name of Ra’aviya). Some say that it is a blemish for the man, and we force him to divorce (Rosh, klal 42).

The Maharik (1:113) notes a stira in the Rosh. On the one hand, we force the epileptic to divorce, because this is a severe Mum like the smell of the nose (42:1), yet in 43:3, dealing with a husband who goes insane, the Rosh is adamant that we cannot force him to divorce in cases that did not appear explicitly in the Mishnah. The Shulchan Aruch cites the Rosh in Even haEzer 154:5. (The Rashba agrees with the Rosh in this respect as well.) Is the list of mumim a closed list or can we expand the list based upon medameh milta le-milta, utilizing analogical reasoning? The Rosh claims that the list in the Talmud is a closed list, and in the Teshuvos haRosh 43:3, we see that in addressing the situation of a mentally dysfunctional husband, Rosh refuses to sanction get coercion due to the fact that such disorder is not cited in the Talmud. A woman demanded a Get with a claim that her husband is insane and his situation is getting worse every day, and if he is not forced to give a Get now it could be that he will reach a stage where he will not be considered competent to give a Get. She also claimed that her husband is dangerous and when he gets upset he “beats and kills and throws and kicks and bites.” Why then did she marry him? She claims that her father was poor and therefore married her off to him, and she as well thought that she could manage with his behavior but now she sees that she cannot stand it anymore. The husband claims that the woman knew about his shortcomings before the marriage and accepted them.

The Rosh paskened, “I do not see among their claims anything that is worth forcing him to divorce, because one should not add to what Chazal listed (in the Mishnah in) Perek Hamadir 77a: These are the ones that we force to divorce, a mukeh shechin, etc.” Despite the fact that the woman’s difficulties in this case are no less than in the cases mentioned in the Mishnah, we do not have the right to compare one to the other, equate them and force a Get in cases that the Mishnah did not state explicitly. The Mechaber brings the Rosh l’halacha: “Ish hamishtateh midei yom yom, ve’omeret ishto. Avi mechamat dachako hissi’ani lo usevurah hayiti lekabbel ve’i efshi ki hu metoraf vire’ah ani pen yahargeni becha’aso, ein kofin oto legaresh, she’ein kofin ella be’otam she’ameru chachamim.” A man who behaves in an uncontrolled fashion, like a shoteh, on a daily basis, and his wife says, “My father, because of his downtrodden financial circumstances, married me to him, and I thought i could tolerate it, but it is impossible to me because he is crazy and I fear he will kill me in his anger,” we do not force him to divorce, for we only force divorce in those cases listed by our sages, in the Talmud.

The Maharik resolves this as follows. He answered that despite the fact that it is impossible to add on to the cases detailed in the Mishnah, it is possible to learn a kal vachomer: if a Mum that is intolerable to the extent that it borders on Chayei Nefesh is a basis to force a divorce, we therefore force the epileptic who besides having a Mum, is dangerous to the wife who cohabits with him. As for the husband who goes crazy, however, his violence does not make him a baal Mum, but rather an uncultured pereh adam (wild man). Therefore, he should not be forced to divorce for a reason not mentioned in the Mishnah. Teshuvos Ma’aset Moshe (1: Even haEzer 17) notes that when the Rosh states that one should not add to the cases mentioned in Perek ha-Madir (referring to our Mishna in Kesuvos), that does not mean that there are no situations where there are grounds for coercion. But rather what is meant, is that one should not add unless a case is like those mentioned.

The Chasam Sofer (Even haEzer 1:116) addresses the stira between the Rosh and the Mordechai/Raaviya.

He contends that the Machlokes Rosh-Raaviya is not a Machlokes in Halacha but rather in metzius — is epilepsy a contagious disease? The Rosh holds that it is contagious and it is forbidden to have relations with an epileptic; therefore, we force the husband to divorce. The Raaviya says that it is not a contagious disease, and we should not force the husband to divorce. Through this, the question raised earlier is answered, that indeed concerning other Mumim the husband is not forced, but rather only those detailed by the Mishnah, but here the Rosh’s opinion is that this is a dangerous item and therefore the ruling should be to force him to divorce.

The Chasam Sofer concludes, “That in our times there is an agreement among the doctors that epilepsy is not a contagious disease, and therefore there is no basis to coerce the husband to give a Get due to his epilepsy. The Be’er Heitev (Seif Katan 13) writes, however, in the name of the Knesses Hagedolah that Halacha lemaaseh, when the husband is epileptic and suffers this for an extended period of time, and the doctors have given up on healing this illness, he can be forced to divorce. “

[The Chasam Sofer’s shita, that epilepsy is not comparable to other mumim, is in line with the medical science of his times. Elsewhere, he paskens in 1828 that an epileptic may serve as a chazzan for the high holidays, as long as the seizures are dormant, and unless he may have a sudden and unpredictable seizure without any known cause. In the end, he allows the subject of the question to eat before prayer in order to lead on Rosh Hashanah.  In order to permit this, he separates epilepsy from other disabilities.  We can read his reasoning as either social, as these people regularly come before human kings, or empirical, since at most times a person’s epilepsy is imperceptible.  (Yoreh Deah 2:7)]

“Even if it is clear in heaven that the halacha follows the Rosh, since there is the opposing view of the Mordechai, and we do not have anyone who can decide between them, if one forced him to divorce she still is still definitely a married woman. The reason I say this is that a coerced get, even when it is enforced according to the Law, and he says “I agree,” is nevertheless only fit for the reason that the authorities gave; it is presumably agreeable to fulfill the words of the rabbis who said one should compel him to divorce- as the Rambam beautifully explained. However, this is only when it is clear to the husband that the coercion is in accordance with the Law according to every authority for if so it is a duty (in the husband’s case) 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 the Rosh, perhaps it is an obligation to heed the words of the Mordechai? So if he said, “I agree,” the get was coerced and did not emanate from his heart.”

In summation, the Mordechai writes in the name of the Raviya that we do not force a husband to divorce because this was not stated explicitly in the Gemara, but we do not force the woman to live with him. The Rosh writes that we force when or because this Mum is a severe Mum like the odor of the nose and the like where we do force. He asked three additional Chachamim, and two of them agreed with him and added a reason that Tashmish with an epileptic is dangerous and that the epileptic has a Din of a Shoteh. The Rama cites both opinions and does not issue a decisive ruling. The Maharik writes that epilepsy is a Mum, but a husband who goes crazy is not a baal Mum because we are not talking about a choleh Nefesh but rather a person who is uncultured. The Chasam Sofer writes that the Machlokess Rosh-Raviya is a Machlokes as per the facts — is epilepsy a contagious disease or not? This differentiation on its own resolves the question that epilepsy is worse than other Mumim, because it causes danger to the wife herself. Lemaaseh the Chasam Sofer writes that in our times it is agreed that this is not a contagious disease and therefore we should not force him to divorce. The Be’er Heitev writes that if the husband falls into the epilepsy and remains that way for a long time and the doctors give up on him on healing him, it is possible to force him to divorce.

However, the Chasam Sofer, in this teshuva, sets a broader precedent. “Since it is the shita of the Mordechai that kefiyyeh is not to be used against this husband to divorce his wife, and we are in no position to determine who is in the right if he divorces his wife by kefiyyeh, the get is invalid and she remains an eishes ish m’doraisa for all purposes, without any doubt whatsoever.” Needless to say, this psak deters many from even discussing any compulsory measures.

Following the Chasam Sofer and Mordechai/Raaviya, should the disease fail to pose a danger, there are no grounds to obligate the husband to give a get. This is unlike the Rosh, who permits get coercion, and who gives support to those poskim who engage in medameh milta le-milta to apply the mishna’s case of mukeh shechin to other dangerous diseases. In pursuance to the Chasam Sofer’s approach in this teshuva, a beis din would almost never compel a divorce judgment, and considering the ramifications of this view, the Chazon Ish exclaimed, “And Chasam Sofer’s psak one cannot sustain.” (Even haEzer 99:23). Despite the Raaviya, the Rosh’s permissive ruling regarding the epileptic husband is seen as analogous to the Talmud’s case of mukhe shechin (mum gadol), where there may be kefiyyeh, and other poskim argue that we are dealing with a disease that endangers the life of others and there are therefore grounds to coerce a get (like the Rosh’s citing of R’ Yitzchak ben Meir, seen in Teshuvos Maharam Gavison 10, who uses medameh milta le-milta reasoning to apply boils to other diseases, and like the Teshuvos Sha’ar Asher 1:45, who claims that kefiyyeh is sanctioned by epilepsy because it poses a danger to others). The stringency of personal endangerment trumps the chezkas eishes ish. Maharit even argues that the Raaviya would have held like the Rosh if he had been aware of the fact that Rabbenu Gershom paskens in favor of get coercion (the fact that Raaviya disagrees and engenders a doubt whether kefiyyeh is mutar, such a doubt, safek, should not trump what is certain, vadai, namely following the shita of others who mandate a coerced get. (Teshuvos Maharit 1:14, 113).

About the Author
Daniel Sayani is a student of traditional Jewish texts, with an eye towards their contemporary applications. He has been widely published on issues of religion, ethics, and their geopolitical dimensions, and he is excited about entering the next phase of his academic and professional life.
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