Concerning the Marriage of a Minor Girl

The following responsum is reprinted from Tomeikh KaHalakhah volume 3.  Tomeikh KaHalakhah is UTJ’s series of volumes of responsa (teshuvot) promulgated by the Union For Traditional Judaism’s Panel of Halakhic Inquiry.

It is not the usual policy of the Panel of Halakhic Inquiry to answer questions that have not been submitted to us for adjudication. We are keenly aware of the ancient rabbinic admonition to adjudicate every case individually, viz., to thoroughly investigate it in all its uniqueness (see M. Avot 1:1; Sanhedrin 7b; Maimonides, Hilkhot Sanhedrin 20:7). Such investigation cannot be conducted unless a case, with all its particularities, has been submitted to us personally by those involved in it. We are also keenly aware of the impropriety of usurping the authority of other rabbinical bodies to whom questions have been submitted by those who accept their halakhic authority (see Shabbat 19b; Eruvin 94a; Pesahim 30a; Hullin 53b). Nevertheless, there are times, when issues arise that involve such intense public discussion of questions basic to Jewish law and theology that we feel obligated to discuss them in order to educate the public (talmud) generally rather than to specifically adjudicate (hora’ah). (For the difference between talmud and hora’ah, see Baba Batra 130b and Meiri, Bet Ha-Behirah thereon; Berakhot 33b and Rashi s.v. Halakhah; Ketubot 56a.)

The following statement is in response to intense discussion in the larger Jewish community (so much so that it has also been widely reported in the general press) about a particular case involving basic issues pertaining to the traditional Jewish family. Here again, without presuming to actually adjudicate a case involving persons who do not look to us for halakhic answers, we have been called on by many within our own constituency and beyond to offer comment and general guidance about a situation that has generated much confusion (For the obligation to answer any question pertaining to Torah teaching, see Kiddushin 30a-b re Prov. 7:3 and Tosafot s.v. al tegamgem; Baba Metzia 23b and Tosafot s.v. be-masekhet.)

As reported to us, the case involves a halakhicly observant Jewish man who has contracted a marriage for his daughter, who is a small child and thus a minor (ketanah). The questions connected with this case are: By what right could he contract such a marriage? Do the sources of Halakhah approve such an act? Is there any remedy for this act, which is reported to have been done in order to prevent the man’s estranged wife from taking custody of his daughter (although the veracity of the entire case has been called into question)? It must be added that there seems to be virtually unanimous revulsion in the entire Jewish community for this most unusual act.

Based on the scriptural verse, “my daughter I have given to this man” (Deut. 22:16), the rabbis interpret that a father has the right to contract a marriage for his minor daughter, who herself has no inherent legal right to contract one for herself (M. Ketubot 4:4; Ketubot 46b; M. Kiddushin 2:1; Sifrei: Devarim, no. 235, ed. Finkelstein, 269. On Kiddushin 64b and Rashi s.v. u-mashnei re Jer. 29:6, it is stated that this is not only a father’s right [zekhut] but his duty [mitzvah]. Cf. Baba Batra 141a, Tosafot s.v. bat; Bereshit Rabbah 60:12 re Gen. 24:57, ed. Theodor-Albeck, 653 and n. 3 thereon; Rashi, Commentary on the Torah: Gen. 24:57. However, none of the codes treats this text as legally binding. Hence the use of the word mitzvah there is best translated as “meritorious” rather than “obligatory.” Accordingly, there is no legal violation [averah] if a father does not contract a marriage for his minor daughter. For this use of the term mitzvah, see, e.g., Zevahim 48a; Y. Pesahim 2:4/29b. Cf. Yevamot 20a and parallels.). Furthermore, a father is to be believed prima facie when he simply declares that he has contracted such a marriage (Ketubot 22a). From this scripturally based right, several issues arise: concern about a marriage conducted without the consent of one of the partners and concern about the possibility of legally sanctioned intercourse with a prepubescent girl, which most morally sensitive people have long regarded as de facto rape.

Although child marriages were quite common in biblical and early rabbinic times for whatever reasons, already in the late Tanaitic period (2nd century C.E.) there was growing disapproval of this practice (see Louis Ginzberg, Perushim Ve-Hiddushim Be-Yerushalmi: Berakhot 1 [New York, 1941], 369; Ephraim E. Urbach, Halakhah [Jerusalem, 1984], 243-244, n. 12-13). By the early Amoraic period (3rd century C.E.), an actual rabbinic decree was issued either in the name of the Babylonian authority Rav or the Palestinian authority Rabbi Eleazar: “It is forbidden (asur) for one to contract a marriage for his daughter when she is still a minor (ketanah) until she is mature and can say ‘it is X whom I want’” (Kiddushin 41a; see Maimonides, Mishneh Torah, Hilkhot Ishut 3:19; Rabbi Ya’akov ben Asher, Arba’ah Turim Even Ha-Ezer, chap. 37; Rabbi Yosef Karo, Shulhan Arukh Even Ha-Ezer 37:8; Rabbi Shmuel Phoebus, Bet Shmu’el thereon, n.11). It is assumed by some commentators that the problem this decree intends to eliminate is the strong possibility that once a woman who was married by her father’s act when she was a minor, upon becoming an adult she will subsequently reject the husband who, in effect, was forced upon her (Tosafot, Kiddushin 41a s.v. asur; Rabbenu Nissim, Kiddushin 16b in the pages of the Rif s.v. ke-she-hi na’arah). This seems to follow from the general rabbinic assumption that marriages should be contracted with the intention of permanence (see Gittin 90b re Mal. 2:14. Cf. Yoma 18b and Tosafot s.v. yihudei). However, one can very well interpret reason for the rabbinic prohibition being a rejection of de facto rape. Indeed, Rabbi Menahem Meiri sees the whole development of the institution of Jewish marriage as resulting in the elimination of the coercion (ones) of women, i.e., what we now would call “marital rape” (see Bet Ha-Behirah, Kiddushin, ed. Sofer, p. 8. Cf. Ketubot 72b, 82b). Nevertheless, if such a marriage prohibited by rabbinic decree was in fact contracted, it is valid ex post facto, and its termination would require nothing less than a full Jewish divorce (get). We shall return to this point later.

However, earlier rabbinic sources, which seem to predate the actual enactment of this prohibition, are more concerned with the issue of sexual intercourse between an adult man and a female child. Thus it is reported that Rabbi Eliezer, at the insistence of his mother, married his niece when she was a minor, but he did not actually consummate the marriage until his wife reached maturity (Y. Yevamot 13.2/13c. See Avot de-Rabbi Natan B, ch. 48, ed. Schechter, 66a; Niddah 13b). This seems to be based on the notion that the primary purpose of marital intercourse is procreation, something that would not result from intercourse with a child. (For the development of the notion that marital intimacy per se is also an end of marriage, see David M. Feldman, Birth Control in Jewish Law [New York, 1968], 60ff.)

The common thread that runs through most of the rabbinic discussions of this issue seems to be concern for the welfare of the bride. Either we are concerned with her being forced to have intercourse without her consent, or her being forced into a union where from she will not derive the mutual benefit of parenthood, or her being forced into a union likely to be impermanent.

What we finally have is a rabbinic revocation of a right granted by the Torah. An essential difference between a scriptural norm and a rabbinic norm is that the latter is a rule derived from an explicit reason, whereas the former does not require any reason at all other than it is the will of God (see Sanhedrin 21b; Bemidbar Rabbah 19:1). And if there is a reason, it is only inferred from implications about it. Thus the reason for a rabbinic norm is its ground, and if the reason no longer applies, the rule itself is subject to possible repeal or radical reinterpretation (see Gittin 14a. Because of the consensus among halakhists not to explicitly repeal any talmudic decree, based on M. Eduyot 1:5, reinterpretation has often been the method of effecting change when needed. See Avodah Zarah 36a and Rashi, s.v. lo pashat. Cf. Maimonides, Hilkhot Mamrim 2:7 and Rabbi Yosef Karo, Kesef Mishneh thereon; also Rabbenu Asher, Responsa Ha-Rosh 2:8). But a scriptural norm may not be repealed, whether or not the reason for it we have inferred still applies (see Kiddushin 29a re Num. 15:23). At most, one can only interpret that a scriptural norm does not apply except under rare circumstances (see, e.g., T. Sotah 14.2 and Saul Lieberman, Tosefta Kifshuta, Nashim [New York, 1973], 751; Sotah 48b re Num. 5:31; Makkot 7a). Nevertheless, a rabbinic norm that limits a scriptural norm can be better understood and better applied if we can see a common reason for both in their interrelation.

This point comes out in the rabbinic treatment of the institution of the marriage of a minor child by either her mother or her brothers when her father is dead (yetomah). Since this is not a scriptural institution, the reason for the institution is more explicit and more determining in the practical application of the law. Under these circumstances, the girl so married has the right to annul her marriage when she reaches her majority (M. Yevamot 13:1-2). According to Maimonides, if the marriage was contracted before her sixth birthday, then even if she was extraordinarily intelligent, we assume that there was no consent and that the annulment of the marriage requires no formal proceeding at all. If the marriage was contracted between her sixth and tenth birthdays, then even if she was extraordinarily unintelligent, we investigate as to whether she is discerning enough to understand the meaning of her marriage and thus has been able to give her consent (ve-nitkadeshah le-da’atah). If that was indeed the case, then the annulment of the marriage requires a formal procedure called mi’un, which the newly matured woman institutes herself. Maimonides concludes by stating that such a marriage is valid in the full scriptural sense (kiddushin gemurin min ha-torah) if she simply remains with her husband (without complaint) after reaching her majority. (Maimonides, Hilkhot Ishut 4:7-8; Hilkhot Gerushin 11:7. See Maimonides’ Commentary on the Mishnah, Yevamot 13:2; T. Yevamot 13:1; Yevamot 108a. Cf. Y. Yevamot 13:2/13c; Rabbi Yosef ibn Habib, Nimukei Yosef on Alfasi, Yevamot 36a in pages of Rif. For Maimonides’ generally lenient attitude toward situations in which women are unwilling to continue living with their husbands, see Maimonides, Hilkhot Ishut 14:8 re Ketubot 63b. There he states, “a woman is not to be like a captive [ke-shevuyah] to have intercourse with a man she hates.” Cf. Ketubot 63b, Tosafot, s.v. aval; Rabbi Ya’akov ben Asher, Arba’ah Turim, Even Ha-Ezer, ch. 77 and Rabbi Yosef Karo, Bet Yosef thereon.)

Clearly, the purpose of the rabbis’ permitting such a marriage was to benefit an orphan girl, who was usually vulnerable, socially and economically. Early marriage was thus considered to be a form of social and economic protection for her. As we have seen, consummation of the marriage before the maturity of the girl was frowned upon. However, it is a halakhic principle that one may benefit someone else without his or her consent (M. Eruvin 7:11 and parallels. See Maimonides, Hilkhot Zekhiyyah U-Mattanah 4:2). However, if someone acted on behalf of someone else, assuming that this other person would have wanted this benefit (zekhut), yet that other person subsequently reveals that he or she actually regarded the “benefit” as a detriment (hovah), then the “beneficial” act is null and void retroactively (see Kiddushin 23a and Nahmanides, Hiddushei Ha-Ramban thereon; Baba Metzia 19a). This is especially so when the object of any such beneficence is a child, being a vulnerable person in need of the most beneficial action from society. Thus, for example, if a gentile child was converted to Judaism, then that child, upon reaching his or her majority, has the right to retroactively annul what was done on his or her behalf if he or she subsequently believes otherwise (Ketubot 11a). Furthermore, even though it is assumed that the rabbis decreed that in the event of marital breakup a child is better off with his or her mother at one age and better off with his or her father at another age, nevertheless, the sixteenth-century Egyptian authority, Rabbi David ibn Abi Zimra, ruled that judges have the duty to do what is most beneficial for each individual child, thus acting more on the intent of the earlier rabbinic rules rather than on their literal formulation (Responsa Ha-Radbaz, vol. 1, no. 123; see ibid., no. 429. Cf. Eruvin 82a-b).

The issue of benefit comes out in medieval treatments of the institution of child marriage. Thus the Tosafists (Kiddushin 41a, s.v. asur), on the talmudic text where the prohibition of child marriage is stated, make the following poignant remark: “But now it is our practice to contract marriages for our daughters, even when they are minors (ketanot). This is because the exile weighs more and more heavily upon us, so that if a man now has the means to provide his daughter with a dowry (nedunia), then [he should contract her marriage now] lest at a later time [when she has reached her majority] he will not have the means to do so and his daughter will remain unmarried (agunah) permanently.” This seems to imply that the reason for both the original scriptural right and the later rabbinic revocation of the initial exercise (le-khatehilah) of that right (although, as we have seen, not its effect ex post facto) is the same, viz., to benefit the girl (for the assumption that a girl should always accept the marital choice made by her father because her father always intends her benefit, see Teshuvot Ha-Ge’onim, ed. Harkavy, no. 212). This comes out in another gloss of the Tosafists on a related talmudic text (Kiddushin 46a, s.v. bein). There the Talmud states that in the event of a minor girl married without the consent of her father, Rav ruled that either the father or the daughter has the right to prevent (le-akev) the marriage from being considered valid. The gloss asks, if the father has the right to contract a marriage for his daughter without her consent, why should her opinion have any legal force at all? One answer suggested is that it is a benefit (zekhut) for him because it is normally assumed that it is a benefit for his daughter. But if she indicates (as a minor) that this is not what she wants, then it would be a detriment (hov) for the father as well because he would not want something for his daughter that she herself would not want for herself. Here it should be noted that the same recognition of the force of intent even in a minor, which Maimonides saw in the rabbinic institution of the marriage of an orphaned minor by either her mother or her brother, is now seen in the scriptural institution of the marriage of a minor by her father.

However, another medieval commentator, Rabbi Israel Isserlein, distinguishes between acting on somebody else’s behalf, even if she does not object in his presence, and her acting on her own behalf independently (Terumat Ha-Deshen, vol. 1, no. 213; see ibid., vol. 2, no. 33). He states that there is an essential difference between the right of a father to allow his minor daughter to contract her own marriage, mentioned in the Talmud and codified by the early post-talmudic authorities (ge’onim), and holding her hand at the wedding ceremony and having the girl utter her consent (which it is reported that Rabbi Meir of Rothenburg actually did with his own daughter). For the latter act is in effect the father’s consent. In other words, consent is essentially an individual matter.

Since the act of contracting a marriage for one’s minor daughter runs contrary to the whole development of this law in halakhic literature, what can the authorities of the particular traditional Jewish community of which this man is a member do to remedy this act, one which has become a public scandal (hillul Hashem), viz., when Jewish law appears to be morally odious by standards common to Judaism and the surrounding gentile culture? (See Berakhot 19b and parallels; Yevamot 79a; Baba Kama 113b; also, Sefer Hasidim, ed. Bologna, no. 1101; Rabbi Hayyim Yair Bachrach, Responsa Havot Ya’ir, no. 31.) Here again, we emphasize that the Panel of Halakhic Inquiry of the Union for Traditional Judaism is not presuming to adjudicate this case. That would be neither our right nor our duty. Instead, we are simply offering suggestions to those authorities (which they may accept, reject or ignore) as to what they might do. And, more importantly, we do regard it to be our duty to inform our own constituency and the larger Jewish community, some of whom have asked us to educate them, about the issues of Jewish family law this notorious case raises.

Some scholars have suggested that this man be punished as a violator of the rabbinic norm prohibiting contracting a marriage for a minor girl. When Jewish communities had more political autonomy than they do at present in our democratic society, the usual penalty for such a violation of rabbinic law was corporal punishment (makkat mardut; see Rabbi Isaac Lampronti, Pahad Yitzhak, s.v. makkut mardut. Cf. B. M. Lewin, Otsar Ha-Ge-onim: Kiddushin [Jerusalem, 1939], 111, no. 245 re Kiddushin 41a). When that type of coercion is impossible, already by the time of the Mishnah (2nd century C.E.) it was recognized that a Jewish court could, in effect, deputize non-Jewish authorities to exercise coercion on its behalf (M. Gittin 9:8, Gittin 88b). In the case at hand, this could be accomplished by appeal to secular laws prohibiting child marriages. Nevertheless, even if such action would be successful, it publicly declares the impotence of traditional Jewish communities to themselves effect justice for their own members, especially when those oppressed are female rather than male.

Some scholars have suggested the less drastic measure of social ostracism, e.g., denying this man certain privileges in the synagogue and in other communal settings (e.g., one could declare this man unfit to be a witness in a Jewish legal proceeding. See M. Sanhedrin 3:2 and Maimonides, Commentary on the Mishnah thereon; Sanhedrin 26b; Maimonides, Hilkhot Edut 11:6. For the use of ostracism, even for offenders against moral rather than strictly legal norms, see Baba Metzia 48b; Y. Kiddushin 3:1/63c). Of course, the effect of such ostracism depends to a large extent on how subordinate this man is to the authorities of his own community. However, recent experience with the growing scandal of traditional Jewish men who refuse give their wives the divorces that they are entitled to by rabbinic decree has shown, alas, that such men are often impervious to anything less than actual physical coercion (see Maimonides, Hilkhot Gerushin 2:20). Their personal interests in the morally odious acts of extortion or revenge more often than not override whatever respect one would assume they have for religious authorities. And, even though such measures are more matters of inner Jewish publicity, they, nevertheless, declare the same impotence of traditional Jewish communities to morally cleanse their own houses.

We can suggest, however, a solution to this scandalous situation this man’s act has created, which is less radical in terms of not relying on secular authorities and more radical as an inner Jewish procedure. We suggest that the rabbinical court (bet din) of the traditional Jewish community of which this man is a member take it upon itself to annul this marriage (see Gittin 33a and parallels; Rabbi Isaac bar Sheshet Parfat, Responsa Ha-Rivash, no. 399; also, for the halakhic arguments supporting such an idea see D. Novak, “Annulment in Lieu of Divorce in Jewish Law,” Halakhah in a Theological Dimension [Chico, Calif., 1985], 29ff.) Such legal action is considered radical, to be sure, but it has sound talmudic basis, and in rare cases when great human suffering could be eliminated only by its invocation it has been invoked (see Rabbi Moshe Isserles, Darkhei Moshe on Arba’ah Turim, Even Ha-Ezer, ch. 7, n. 13).

Of course, it could be countered that when this procedure was invoked, it was for the benefit of a large number of Jewish women. To this we can only answer that to allow this situation to continue is in many ways to permit this evil man to ruin the life of his daughter. Less radical solutions to her predicament could only leave her sexually tainted for the rest of her life (see Yevamot 59a; Maimonides, Hilkhot Isurei Bi’ah, 17:18). Only annulment (afka’at kiddushin) removes any taint at all from her. Only this procedure truly frees her to live a normal Jewish life. It must be stated, however, as we did in Tomeikh KaHalakhah vol. 2 no. 24, that our tradition teaches that in such serious matters where permission to remarry may result in mamzerut, i.e., children born of an illicit union, a broad consensus of other rabbis is required before any annulment can take place (see Rabbi Moshe Isserles, Shulhan Arukh, Even Ha-Ezer 17:34). At the same time, we must bear in mind that any time when we can eliminate undeserved suffering caused by the sins of others we must do so. As the prophet put it, “The fathers have eaten sour grapes, and the teeth of the children are set on edge!” (Jeremiah 31:28). And to those who would say that this involves only one Jewish girl, we would remind them of the teaching of our Sages, “One who saves even one Jewish life, it is as if he has saved an entire world.” (Sanhedrin 37a. From the context of the Mishnah quoted there, M. Sanhedrin 4:5, it is clear that the correct text is nefesh ahat, i.e., any human life. In the case of literal life, that is no doubt the case. However, the reading of most manuscripts of Talmud Bavli can be applied to various forms of social “death,” wherein Jews have special obligations for each other; see Maimonides, Hilkhot Mattnot Aniyyim 10:2. For the allusion to social difficulties as “death,” see, e.g., Nedarim 7b re Exod. 4:19 and Rabbenu Nissim, s.v. she-ne-emar.) Whether it is one life or many lives, surely the Torah’s command, “Justice, justice you shall pursue” (Deuteronomy 16:20) applies here and now. There are, of course, many cases of injustice in this world that human beings cannot rectify, and that we can only hope that God will rectify, either in this world or in the world-to-come (see, e.g., Kiddushin 39a and Tosafot, s.v. matnitin; T. Sanhedrin 8:3; Sanhedrin 37b; Hullin 142a). But when we do have the power to rectify any injustice and do not do so, either because of inertia, timidity, prejudice, or erroneous piety, then we ourselves must answer to God as to why we did nothing when we could have done something effective for justice (see Bereshit Rabbah 60:3).