Judaism: Justice for the Agunah
Not every marriage is successful. Despite our desire for each to be perfect, we know the truth is that there are hundreds of reasons a man and a woman, once joined in love and joy, should no longer remain together. When that happens, Judaism recognizes the need to let the marriage come to an end in a way that allows both bride and groom, husband and wife, to grieve for what “could have been” but wasn’t, for promise unrealized, and then go forward with a productive and meaningful life. The Torah envisions the reality of our deepest relationships by providing both the roadmap for marriage – the kesuba – and the mechanism for ending a marriage – the Get.
In recent months and years, we hear more and more of the men – learned, yeshiva-taught men – who withhold Gitten from their wives; wives who have a God-given right to be released from their failed marriages. Such cruelty by such men damns these agunot to a non-life.
And it is wrong.
Just how wrong can be clearly understood by an examination of the Bais Din’s elevated role in the community and the holiness of Sabbath and yom tov. Simply consider that the Bais Din does not convene on Sabbath or yom tov. At first glance, this would seem obvious. But it is closed not only for judgment but also for deliberations among the dayanim (judges) even though one could suggest that dayanim deliberating without issuing piskei din (decisions) is little different that Talmud Torah. However, the Talmud, in the latter part of Masechet Beitza (37a) which Daf Yomi recently concluded, teaches that the Bais Din does not issue judgments on Sabbath and yom tov lest they would be prompted to write the psak din and transgress the prohibition of kesiva (writing). Likewise, merely deliberating runs the risk that it may lead to their writing their thoughts and observations on a given case.
But the role of the Bais Din is not only to rule but also mete out punishment. Further, it is empowered to imprison one whom it suspects may escape in order to avoid appropriate punishment. It would seem that these Bais Din actions would be excluded from the Talmud’s prohibition of lo danin, not to issue rulings. These responsibilities and actions require no writing. Yet, quoting Shibolei Haleket, the Rema rules that it is prohibited to punish or imprison on Sabbath and yom tov, a ruling founded not on the Talmud’s positions on danin but rather because God ordained that punishments not be administered on Sabbath and yom tov. As Rambam teaches (Hilchot Sabbath 23:14), “we do not punish on the Sabbath… if one was sentenced to lashings or to death, we do not mete out the lashings (malkos) or execute him on the Sabbath…” The Shibolei Haleket further ruled that it is likewise forbidden to imprison one who is suspect of escaping from punishment – because imprisonment is also a form of punishment.
The Sefer Hachinuch (Vayakhel) explains the basis of this principle that all are gifted with a day of rest Sabbath that, “…It was the will of God to honor this day, that all should find rest in it, even the sinners and the guilty. A parable teaches that a great king summoned the people of the country to a one-day feast; a feast when he would invite every man, bar none, to the celebration even though immediately after the feast day he would sit in judgment (of some who were present at the feast). So in this matter, HaShem commanded us to hallow and honor the Sabbath day for our good and our merit.”
This too is for the honor of the day.
Even the administration of punishment which may not entail any chilul Sabbath is forbidden on the Sabbath. To imprison one who may escape punishment is not deliberation of law; it is not adjudication of law which is rabbinically forbidden; it is also not administering punishment which is Biblically forbidden, “that the judges should not carry out judgment on the Sabbath” (Chinuch 114). It is merely subsumed in the logic and grace of the prohibition to administer punishments – so that all may equally enjoy God’s desire for all to rest, whoever they are.
Such a blessing and gift! That all should enjoy the beauty of Sabbath! Imagine then what it means to learn that there is an exception to this rule. A single, sole exception. The one exception deemed by Chazal as possessing an intention and goal to cause such misery that he can be imprisoned on Sabbath, is not a murderer, is not a thief, and is not even one who has waged war.
Who then has committed such a grievous sin that even the blessing of enjoying Sabbath as a free man can be denied him? Who is considered so depraved that he is not welcome to God’s feast unless and until he fulfills his Godly and human obligation? Who is called out even when the thief and criminal are not? It is the husband who seeks to escape and leave his wife without a valid get, an agunah.
The Mishna Berura is emphatic, v’ein b’klal zeh – not included in this general rule [that we may not imprison one whom we suspect will escape] – im echad rotzeh l’vroach k’dei lehagen ishto – if one wants to escape in order to leave his wife an Agunah – mutar haya l’chovsho (it is permitted to imprison him).
It is only this one that the bais din is allowed – no! obligated! – to detain on the Sabbath. His imprisonment is not regarded as punishment which is forbidden on Sabbath, but rather an emergency permit granted to the bais din to assure that this vengeful, spiteful fellow is denied an escape route which denies the woman her God-given right to go on with her life. This one can be detained on Sabbath in order to assure that he not destroy countless future Sabbath feasts of this unwanted wife.
Again, it is understandable that there is bitterness after a marriage fails. There is grieving for a life envisioned and promised that did not come to fruition. But that bitterness, that grief, that unfulfilled promise, cannot and does not allow a man to become a virtual jailor of his wife’s future.
We can all weep for the marriage that does not succeed. But our sadness necessarily turns to astonishment and then anger when we learn that the husband, far from acknowledging and accepting this reality, lashes out in anger and vindictiveness by withholding the Get (divorce decree that must be given by husband to wife for a halakhic divorce, ed.).
Such a man who then seeks to flee so his poor wife remain an Agunah is NOT a category of punishment (onesh) forbidden by Torah law. It is not a category of deliberation/adjudication of law (din) forbidden by rabbinic law. It is, in fact, a category unto itself and, as such, presents the Bais Din with the power and authority to put the man in his “place” in order to protect the legitimate rights of the potential Agunah.
Chazal are clear, being an Agunah is an unspeakable curse, one that necessitates the suspension of this Sabbath rule.
That our tradition and ways are consistently concerned and sympathetic to the Agunah is made even more evident when Poskim discuss this exception to the rule regarding imprisonment on Sabbath. They cite an additional example of one who may also be detained on Sabbath. In Mishna Berura, it is written, “…that it is likewise mutar (permitted) to receive testimony from a dangerously ill witness [who may very well die, unless we receive his testimony immediately, on Sabbath] about a woman whose husband died, where we are concerned that no other witness will subsequently be found to verify that the husband indeed died.”
It is clear that halacha is determined to find a way to free a married woman from remaining in a perpetual state of limbo, without being able to move on with her life – going so far as to allow the imprisonment of a husband on Sabbath if he refuses to provide his wife with a get or by detaining a dangerously ill man in order to receive his testimony regarding the death of a husband. In both cases, the intention is clear – to ensure a way for the wife to move on and live a meaningful, happy life, unshackled by the sadness of a failed marriage or lost husband.
Jewish law does not tolerate allowing a woman to remain chained. It clearly stands for justice for the Agunah.