015 - הִלְכוֹת אִישׁוּת פֵּרֶק טו

Laws of Marriage, Chapter 15

1. If a woman gives her husband permission, after marriage, to withhold her conjugal rights, this is permitted. In what case does this apply? When he already has children, for he has already fulfilled the mitzvah of being fruitful and multiplying. But if he has not fulfilled it, he is obligated to have relations with her at every designated time until he has children, because this is a positive commandment of the Torah, as it is stated: "Be fruitful and multiply" (Bereishis 1:28; Bereishis 9:1; Bereishis 9:7).

2. The man is commanded regarding being fruitful and multiplying, but not the woman. And from when is a man obligated in this mitzvah? From the age of sixteen or seventeen. Once twenty years have passed and he has not married a woman, he transgresses and neglects a positive commandment. However, if he is engaged in Torah study and is preoccupied with it, and he fears to marry a woman lest he be burdened with providing for her and be distracted from Torah, he is permitted to delay, for one who is engaged in a mitzvah is exempt from another mitzvah, and all the more so with Torah study.

3. One whose soul constantly desires Torah, and is immersed in it like Ben Azzai, and cleaves to it all his days, and does not marry a woman—he does not bear guilt, provided that his inclination does not overpower him. But if his inclination does overpower him, he is obligated to marry a woman, even if he already has children, lest he come to improper thoughts.

4. How many children must a man have for this mitzvah to be fulfilled? A male and a female, as it is stated: "Male and female He created them" (Bereishis 5:2). If the son is a eunuch or the daughter is an aylonis (a woman incapable of bearing children), he has not fulfilled the mitzvah.

5. If children were born to him and died, but they left behind children, he has fulfilled the mitzvah of being fruitful and multiplying; grandchildren are considered like children. In what case does this apply? When the grandchildren are a male and a female, and they come from a male and a female, even if the male is the son of his daughter and the female is the daughter of his son—since they are from his two children, he has fulfilled the mitzvah. But if he had a son or daughter who died, and only one of them left behind a male and a female, he has not yet fulfilled the mitzvah.

6. If he had children while he was a non-Jew and then he and they converted, he has fulfilled this mitzvah. If he had children while he was a slave and then he and they were freed, he has not fulfilled the mitzvah of being fruitful and multiplying until he fathers children after being freed, for a slave has no lineage.

7. A man should not marry a barren woman, an elderly woman, an aylonis, or a minor who is not fit for childbearing, unless he has already fulfilled the mitzvah of being fruitful and multiplying, or he has another wife from whom he can have children. If he married a woman and remained with her for ten years and she did not bear children, he must divorce her and give her the kesubah, or marry another woman who is fit for childbearing. If he does not wish to divorce her, he is compelled and beaten with a whip until he divorces her. If he says, "I will not have relations with her, but I will live with her in the presence of witnesses so as not to be secluded with her," whether she says this or he says it, they are not listened to; rather, he must divorce her or marry a woman fit for childbearing.

8. If he remained with her for ten years and she did not bear children, and he emits semen like an arrow, the presumption is that the illness is from her, and she leaves without a kesubah. She is entitled to the additional amount (over the basic kesubah)—it should not be less than that of an aylonis whom he did not recognize, who is entitled to the additional amount as will be explained. But if he does not emit semen like an arrow, the presumption is that the illness is only from him; and when he divorces her, he must give her the full kesubah, both the principal and the additional amount.

9. If he claims that the lack of children is due to her, and she claims it is due to him, because he does not emit semen like an arrow, she is believed. He may impose a ban on anyone who makes a claim about something she does not know with certainty, and afterwards he gives the kesubah. If she says, "I do not know whether it is from me or from him," she does not receive the principal kesubah, as we have said: property remains in the possession of its owner until she claims with certainty that he does not emit semen like an arrow. Why is she believed in this claim? Because she senses whether he emits semen like an arrow or not, but he does not sense it.

Laws of Marriage, Chapter 15

10. If a woman comes to demand that her husband divorce her after ten years because she has not borne children, and she says that he does not emit like an arrow, we listen to her. Even though she is not commanded regarding procreation, she needs children for her old age. Therefore, we compel him to divorce her, and he gives her only the principal amount of the kesubah, since he did not write her the additional amount on condition that she would leave of her own will and take it.

11. If he traveled for business within the ten years, or he was ill, or she was ill, or they were imprisoned, that time is not counted as part of the ten years.

12. If she miscarried, he counts from the day she miscarried. If she miscarried and then miscarried again three times, she is established as one who miscarries, and perhaps he will not merit to be built from her; therefore, he must divorce her and give her the kesubah.

13. If he says she miscarried within the ten years in order to remain with her, and she says, "I did not miscarry," she is believed, for a woman does not establish herself as barren. If he says she miscarried twice and she says three times, she is believed, for a woman does not establish herself as one who miscarries. Therefore, he must divorce her and give her the kesubah. In all these cases, she must take an oath of heses that she did not miscarry, or that she miscarried three times, since with this claim he is obligated to give the kesubah.

14. If she was married to one man and stayed with him for ten years and did not bear children, and he divorced her, she is permitted to marry a second man. If she stayed with the second for ten years and did not bear children, she should not marry a third. If she did marry a third, she must leave him without a kesubah—unless he already has another wife or has fulfilled the mitzvah of procreation.

15. If a woman comes to Beis Din and says, "My husband is unable to have marital relations in the normal way that produces children," or "he does not emit like an arrow," the judges should make a compromise and say to her, "It is proper for you to remain with your husband until you have been together for ten years and have not borne children, and then you may make your claim." They should continue to discuss the matter with her, but do not compel her to remain, nor do they judge her as a rebellious wife. Rather, they prolong the matter until a compromise is reached.

16. Even if a man has fulfilled the mitzvah of procreation, he is still obligated by rabbinic decree not to refrain from being fruitful and multiplying as long as he has the strength, for anyone who adds even one soul to the Jewish people is considered as if he built a world. Similarly, it is a mitzvah of the sages that a man should not remain without a wife, so that he does not come to improper thoughts, and a woman should not remain without a husband, so that she is not suspected.

17. It is an obligation for every man to be zealous regarding his wife. The sages said: A man is not zealous regarding his wife unless a spirit of purity enters him. He should not be excessively jealous of her, nor should he force her or have relations with her against her will, but only with her consent, and in an atmosphere of conversation and joy.

18. Similarly, the sages instructed that a woman should be modest in her home, and not increase in laughter and lightheadedness in the presence of her husband, nor should she verbally request marital relations, nor speak about this matter. She should not withhold herself from her husband in order to distress him so that he will increase his love for her, but should be responsive to him whenever he desires. She should be careful regarding his relatives and household members, so that he will not become jealous, and she should distance herself from anything improper or similar to impropriety.

19. Similarly, the sages instructed that a man should honor his wife more than himself and love her as himself. If he has means, he should increase her welfare according to his wealth. He should not impose excessive fear upon her, and his speech with her should be gentle; he should not be sad or angry.

20. Similarly, the sages instructed that a woman should honor her husband exceedingly, and he should be held in awe by her. She should do all her deeds according to his wishes, and he should be in her eyes like a prince or king—she should act according to his desires and distance herself from anything he dislikes. This is the way of all the daughters and sons of Israel who are holy and pure in their marriages, and through these ways their homes will be pleasant and praiseworthy.