Parashat Mishpatim: Wife and Family Support

  • Rav Binyamin Tabory

The first topic addressed in Parashat Mishpatim involves the treatment of Jewish slaves, both male and female.  The Ramban explains that fair treatment of slaves serves as a reminder of the exodus from slavery in Mitzrayim.  He adds that this parasha is thus connected to the first of the Ten Commandments - to believe in God who delivered us from slavery in Mitzrayim.

 

The laws of the Jewish maidservant follow the laws of the male slave, who basically is a a thief who stole and could not repay his theft.  The maidservant, by contrast, is a young girl "sold" to a man who is expected to either marry her or arrange for his son to marry her.  Thus the "sale" of a maidservant is actually a marriage arrangement for the future.

 

After the maidservant's marriage, this wife would have the same laws, customs and regulations that apply to any other spouse.  The Torah instructs, "He shall deal with her according to the rights of the young women… he shall not diminish her food, her clothing or her marital relations" (Shemot 21:9-11).  This translation of the Biblical text reflects the opinion presented in the Gemara by Rava (Ketubot 47b) and cited by Rashi in his commentary on the Torah.  Based on this understanding, the Rambam lists as one of the 613 mitzvot (Sefer Ha-mitzvot, lo ta'aseh 262) the prohibition against withholding these rights from the maidservant-wife.  He adds that this also applies to every married woman.  In principle 9 of his introduction to Sefer Ha-Mitzvot, the Rambam explained that although there really are three separate obligations, they are nevertheless to be counted as a single mitzvat lo ta'aseh ("negative commandment"), since the Torah employed just one verb: "shall not diminish."

 

Rabbeinu Sa'adya Gaon likewise maintains that these obligations are of Biblical origin, but claimed that we must count them as three individual mitzvot asei ("positive commandment").  He apparently understood that the basic obligation is, "he shall deal with her according to the rights of the young women."  When the Torah then enumerated three individual obligations, they are to be considered three separate mitzvot.

 

However, other opinions maintain that supporting one's wife constitutes a rabbinic requirement.  The Ramban cites these opinions and explains that the requirements and obligations of the Torah refer only to marital relations and have nothing to do with financial arrangements.

           

The previous section of the Torah establishes that if a male slave is married when he begins his term of slavery, his wife goes out (of slavery) together with him after six years of service (Shemot 21:3).  Rashi (ad loc.) cites the gemara (Kiddushin 22a) which questions the meaning of the wife's exit.  After all, she was never enslaved in the first place, as no married woman could ever become a slave.  The gemara therefore explains that this refers to the master's obligation to support his servant's wife as long as he remains in his possession.  Therefore, in one sense, the wife also "leaves" the care of the master when her husband attains freedom.

 

If we assume that the Torah requires a husband to support his wife, then it seems logical that when the husband becomes a servant and thus cannot fulfill his obligation, the Torah obligated the master to do so.  However, if the husband is not required to support his wife, why did the Torah obligate the master?  The Ramban (Shemot 21:3) explained that although there is no explicit obligation in the Torah to support one's wife, it is the normally accepted practice to do so.  Apparently, he felt that there is no reason to obligate people to do what should be normally understood and naturally done.  Moreover, perhaps the Torah did not want a husband to support his family because of strict Biblical requirement.  A normal person should do so out of love and a sense of responsibility.  The Chakhamim, however, foresaw the possibility of recalcitrant husbands who would not fulfill this normal practice, and they therefore enacted a rabbinic obligation to support one's wife.  Although the Torah itself placed no specific obligation on the husband, it assumed that the wife would be well provided for.  When the husband becomes a slave and thus cannot care for his wife, the Torah realized that the master would not automatically assume the responsibility to support his servant's wife, and it therefore imposed a Biblical obligation to this effect upon the master.

 

To summarize the basic positions, all acknowledge that there exists an obligation of wife support.  Rashi and the Rambam consider this a Torah requirement, whereas the Ramban holds that while it is proper and normal to do so, this is, strictly speaking, merely a rabbinic obligation.

 

The gemara (Ketubot 65b) states clearly that one is obligated to support his small children.  The Ramban obviously understands this to be a rabbinic law; there is no Biblical requirement of child support just as there is no Torah obligation of wife support.  On the level of Torah law, feeding one's children should be self-understood and done as normal behavior and practice, but the Chakhamim instituted a specific law in order to require the neglectful father to support his young children.  The Rambam codified (Hilkhot Ishut 12:14) the obligation for a father to support his young children, and added, "just as he must support his wife."  This comparison drawn by the Rambam between supporting children and supporting a wife suggests that in his view, feeding children likewise constitutes a Biblical obligation.

 

The Mishneh Le-Melekh (ad loc.) cites the position of the Ran, that the obligation of child support is actually a derivative of the requirement of wife support.  The obligation to support one's wife would include providing the means to support her children, as well.  It therefore follows that the obligation of child support would cease with the wife's death.  It would also follow logically from this position that a husband would have to support his wife's children even if he were not the father. By contrast, the Rosh and Rivash (also cited in Mishneh Le-Melekh) maintained that if a man sired a child out of wedlock, he still must support his children.  In that case, he certainly need not support the mother, who is not his wife. These Rishonim thus disagree with the Ran and hold that there is an independent halakha of supporting children.  This obligation would then continue after the wife's death and presumably would not require a husband to support his wife's children from another man.

 

In conclusion, Halakha indeed obligates a father to support his children.  The basic obligation seems to be a Biblical obligation according to the Rambam and a rabbinic obligation according to the Ramban.  It may be viewed as either an independent halakha (Rosh and Rivash) or a requirement subsumed under the obligation of wife support.

 

Furthermore, there might exist two separate halakhot that apply to different ages of children.  We could assume that the basic law would apply only to children below the age of six, while various takkanot have been made throughout the ages to ensure that the rights of children are protected.  The history and analysis of the takkanot of the Chief Rabbinate in Israel in this regard, written by Dr. Z. Warhaftig, appeared in Techumim vol. 1 and has been included in his work, "Studies in Jewish Law."