The Marital Relationship of Ishut and the Status of Eishet Ish

  • Rav Moshe Taragin
 
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This shiur is dedicated in memory of Israel Koschitzky zt"l, 
whose yahrzeit falls on the 19th of Kislev.  
May the world-wide dissemination of Torah through the VBM 
be a fitting tribute to a man whose lifetime achievements exemplified the love of 
Eretz Yisrael and Torat Yisrael.
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In the process of Jewish divorce, a get both releases a woman from her marriage as well as eliminates her restraints against marrying another man. In other words, a get dismantles ishut (the state of being married) just as it alters the woman’s status from that of an eishet ish (married woman) to a penuya (single woman). What is the relationship between these two dynamics? Is the dismantling of the ishut sufficient to remove the eishet ish status, or must that status be altered independently of the cancellation of ishut?
 
Obviously, this question stems from a larger issue. Are these two components of halakhic marriage interdependent or autonomous? Is the status of eishet ish which prohibits a woman from marrying another man a derivative of the ishut relationship between husband and wife? Indeed, the relationship of ishut dictates many halakhot, but is the status of eishet ish also an offshoot of ishut? Or is the status of eishet ish independent of the ishut in the same manner that basar be-chalav (meat cooked in milk) or neveila (an animal which dies without being slaughtered) is an objective status of issur unrelated to any other relationship.
 
This question emerges from an interesting comment of Tosafot in Kiddushin (2b) explaining a gemara which probes the language of kiddushin. The term “kiddushin” doesn’t appear in the Torah, yet Chazal apply it to marriage. Defending this application, the Gemara asserts that a man “prohibits his wife from additional marriages in the same manner that hekdesh (donation to the Temple) creates lateral prohibitions to others.” As such, the term kiddushin — evocative of hekdesh — suits halakhic marriage. (They share the same root of kodesh, holy, but are different conjugations.)
 
Tosafot highlight the structural comparison between kiddushin and hekdesh — in each instance, the process creates a designation or an association: in the case of hekdesh, the item is associated with the Beit Ha-mikdash; in the case of kiddushin, a woman is associated with her husband. As a consequence of these relationships, each item becomes forbidden for general interactions: both the item designated for hekdesh and the woman become prohibited to others. In other words, Tosafot believe that the comparison between kiddushin and hekdesh is a very strong one, and the arc of kiddushin is identical to hekdesh in that the issur stems from the relationship created. Other Rishonim interpret the association between kiddushin and hekdesh less literally and do not define the issur eishet ish as stemming from the ishut relationship (see, for example, Tosafot Rid, Kiddushin 2b).
 
This question as to whether the status of eishet ish stems from the ishut or exists independently, appears to influence a machaloket about a self-terminating marriage. The Mishna in Nedarim (28a-b) asserts the validity of self-terminating hekdesh: a person may dedicate something to hekdesh and predetermine the automatic dissolution of this status after a certain period has expired.
 
The Gemara (29a), cites Rav Hamnuna who assumes that kiddushin is modeled after hekdesh, and since self-terminating kiddushin cannot be constructed, neither can self-terminating hekdesh. Rava responds that self-terminating kiddushin isn’t allowable because the status of eishet ish is a kinyan ha-guf and cannot automatically be dissolved without an actual get. Indeed the component of ishut can self-terminate but the status of eishet ish is unaffected without an actual get. Recognizing the autonomy of the issur eishet ish, Rava distinguishes between hekdesh which can self-terminate and marriage which cannot. Rav Hamnuna avoids this distinction, possibly because he equates kiddushin to hekdesh. In either case the prohibition is a result of the relationship. Consequently, if marriage can’t self-terminate, neither should hekdesh.
 
This question also informs an intriguing gemara in Kiddushin (13b) which probes the ability of a widow to remarry. Though her ishut has been dissolved (since she can’t be married to someone who is dead), perhaps the prohibition of eishet ish continues undisrupted and she may not remarry! Unlike a situation of divorce, in the case of death, no distinct action has occurred to convert her status from eishet ish to penuya. Should the dissolution of the ishut be sufficient to remove her eishet ish status, which may be seen as a derivative of her ishut? The Gemara initially claims that the heter for a widow to remarry is intuitive, implying that indeed the issur stems from the ishut, and once the latter vanishes, the former dissolves as well. Subsequently, the Gemara suggests a source (an implied source) which may indicate a very different logic: indeed the issur eishet ish is autonomous and requires a direct action for its removal. However, the event of death is similar to the process of delivering a get in that it actively removes the eishet ish status.
 
Continuing the analysis, the Gemara concludes with an interesting phrase: “Just as geirushin permits her, similarly does her husband’s death.” The simple reading of this gemara implies that the issur eishet ish will not automatically vanish once the ishut is canceled but requires a direct rescinding similar to the delivery of a ‘get.’ However, death is an “event” equivalent to divorce in converting her status. As some note (see Kovetz Shiurim), a woman whose husband is dead without having undergone the act of dying may not be permitted to remarry. For example, the Prophet Eliyahu’s wife (Eliyahu is no longer considered living even though he didn’t die) no longer enjoys ishut but didn’t experience the event of her husband’s death to repeal her status as eishet ish!
 
This question may also inform a machaloket between the Chakhamim and Rabbi Eliezer about a divorce which doesn’t completely allow her to marry any man of her choice.
 
The Mishna in Gittin (82a) describes a person who divorces his wife “chutz mi-ploni,” stipulating that she can remarry anyone but a specific individual. The Chachamim disqualify this get since is isn’t comprehensive.  Since the Torah qualifies the get as sefer keritut (a scroll of severance), a get must completely and definitively eliminate the ishut. As she still remains prohibited to the stipulated ploni, there is a residue of the original ishut and the condition of keritut hasn’t been attained. Rabbi Eliezer argues and validates this type of get. Perhaps Rabbi Eliezer severs the status of eishet ish from the ishut relationship. Even though her status of eishet ish still lingers, it doesn’t reflect a vestige of the original ishut. The status of eishet ish exists independent of the ishut and can be calibrated through the geirushin process. The retention of the issur eishet ish upon a certain ploni doesn’t reflect a residue of the original ishut since the issur of eishet ish exists independent of the ishut