A sordid Affair
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BySteven Dansky
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HALACHA
אבן העזר קט״ו:ו׳

(ו) אין עדים שזינתה אלא שהיא אומרת שזינתה אין חוששין לדבר זה לאוסרה דשמא עיניה נתנה באחר (ודוקא שאין רגלים לדבר אבל אם יש רגלים לדבר נאמנת) (פסקי מהרא"י סי' רכ"ב) אבל איבדה כתובתה עיקר ותוספת ומה שאינו בעין ממה שהכניסה לו (ואם חזרה בה ונתנה אמתלא לדבריה למה אמרה בתחלה כן נאמנת) (הגהת מרדכי דקדושין) ואם היה מאמינה ודעתו סומכת על דבריה ה"ז חייב להוציאה אבל אין כופין אותו להוציאה אבל אם נאנסה לא הפסידה כתובתה לא אשת ישראל ולא אשת כהן

Shulchan Arukh, Even HaEzer 115:6
  1. If there are no witnesses that she committed adultery, but rather she herself says she has committed adultery, we are not concerned about this matter to forbid her [from her husband], as perhaps she [merely] set her eyes upon another.
  2. This is only if there is no reason to believe her, but if there is reason to believe her, she is trusted (Decisions of Mahara"i #222). But she does lose her marriage contract--both the essence and the additions--and property which she brought into the marriage and is not longer extant.
  3. If she goes back on her words and gives a reason that she would have lied in the first place, she is trusted (Glosses of Mordekhai to Kidushin).
  4. If he had believed her and his thoughts are now reliant on her words, he is obligated to send her out, but we do not force him to send her out.
  5. But if she were raped, she does not lose her marriage contract, whether she is the wife of an Israelite or the wife of a priest.
אבן העזר קט״ו:ז׳
מי שראה אשתו שזינתה או שאמר לו א' מקרוביו או מקרובותיה שהוא מאמינם וסומכת דעתו עליהם שזנתה אשתו בין שהיה האומר איש בין שהיתה אשה הואיל וסמכה דעתו לדבר זה שהוא אמת ה"ז חייב להוציאה ואסור לו לבא עליה ויתן כתובה ואם הודית לו שזינתה תצא בלא כתובה לפיכך משביעה בנקיטת חפץ שלא זינתה תחתיו אם ראה אותה בעצמו ואח"כ תגבה כתובתה אבל בדברי אחר אינו יכול להשביעה אלא ע"י גלגול: הגה הרבה קרובים כולם אינם רק כעד אחד (הגהות מרדכי דיבמות) וע"ל סי' קע"ח סעיף ט' וי"א דלא יכול לומר שמאמין לעד אלא אם מאמין לו ג"כ בשאר דברים אבל אם אינו מאמין לו בשאר דברים רק בדבר זה משום דבלא"ה נחשדה לו קצת לא נאסרה עליו משום זה (מהרי"ק שורש פ"ב):
Shulchan Arukh, Even HaEzer 115:7
  1. One who saw his wife commit adultery, or
  2. one of his [the adulterer's] or her relatives told him, and he believes them or his judgment relies on their statement that he wife committed adultery, whether the speaker was a man or a woman, since his judgment relied on the truth of this matter, he is obligated to divorce her and is forbidden from having sex with her, and he pays her according to the marriage contract.
  3. If she admitted that she committed adultery, she is divorced without receiving the marriage contract. Therefore, he makes her swear while holding an object that she did not commit adultery, if her saw her himself, and afterward she collects the marriage contract. But she can only be forced to swear by the testimony of another if she is already being forced to take a different oath.
  4. Rem"a: Many relatives together count as one witness (Glosses of Mordekhai on Yevamot). See above, 178:9. Some say that he cannot say that he believes the witness unless he believes him in other matters as well, but if he does not generally believe him, and only believes him in this matter, because she is already somewhat suspicious to him, she is not forbidden based on this [testimony] (Mahari"k #92).
בית שמואל קט״ו:כ״ה

חייב להוציאה. ואם ע"א מעיד על כיעור אין חייב לגרשה אפילו אם הוא נאמן בעיניו כתרי תשו' מהר"מ מלובלין סי' פ' ועיין קע"ח:

Beit Shmuel 115:25

If one witness testified about an affair, the husband is not obligated to divorce her, even if he is believed in the eyes of the husband.

Pitchei Teshuva on Shulchan Arukh, Even HaEzer 115:37
  • The Rambam writes almost explicitly that even when he saw his wife having an adultrous relationship, Beit Din don't force him to leave her.
  • It is clear from the Shulchan Aruch that unless there are two witnesses that she was unfaithful Beit Din do not force him to divorce her...
כתובות ט׳ א:א׳
האומר פתח פתוח מצאתי נאמן לאוסרה עליו
Ketubot 9a:1
A groom who says: I encountered an unobstructed orifice, claiming that when he consummated the marriage he discovered that his bride was not a virgin, is credible to render her forbidden to himself. Although it is not always possible to corroborate his claim with testimony that his wife committed adultery after betrothal, he is credible to render her forbidden to him as though she had in fact committed adultery.
Rashi on Ketubot 9a:1:1

Even though this matter can only be clarified by his mouth, he is believed to turn her into something which is forbidden to him. However, he is unable to make her lose her Ketuba.

ברכות י״ט ב:ב׳
אמר רב יהודה אמר רב המוצא כלאים בבגדו פושטן אפילו בשוק מאי טעמא אין חכמה ואין תבונה ואין עצה לנגד ה׳ כל מקום שיש חלול השם אין חולקין כבוד לרב
Berakhot 19b:2
We learned that some who come to console the bereaved are exempt from Shema as a means of honoring the deceased. The Gemara expands the discussion to raise the general question: To what degree does preserving human dignity takes precedence over mitzvot enumerated in the Torah? Rav Yehuda said that Rav said: One who discovers diverse kinds [kilayim], i.e., a prohibited mixture of wool and linen, in his garment, must remove them even in the public marketplace. He may not wait until he reaches home. What is the reason for this? As it is stated: “There is neither wisdom, nor understanding, nor counsel against the Lord” (Proverbs 21:30). From here, the general principle: Anywhere that there is desecration of the Lord’s name, one does not show respect to the teacher, is derived.

ROSH

When a person finds Kilayim on his own clothing he has to take it off straight away, but if a person sees Kilayim on his friends clothing, or he doesn’t know that he is wearing it then you have no obligation to tell him until he arrives at his home, because the honour of people is such that you should keep quiet and not separate him from something that he does unknowingly.

RAMBAM

  • The Rambam writes: That if you see someone else wearing Kilayim in the marketplace you need to tear it off him, even if it is his rabbi, and even if he had taught him wisdom.
  • The Rambam disagrees with the Rosh.
  • The Radbaz says that later commentaries disagrees with the RAMBAM.
  • The Trumas Hadeshen also comments that if a priest slept naked in a tent in which there is a dead person, you don’t tell him to leave the tent naked, but rather tell him to get dressed, and then tell him afterwards. We see the importance of honouring people.
מנחות ל״ז ב:ט״ו-י״ז
רבינא הוה קא אזיל אבתריה דמר בר רב אשי בשבתא דריגלא איפסיק קרנא דחוטיה ולא אמר ליה ולא מידי כד מטא לביתיה אמר ליה מהתם איפסיק א"ל אי אמרת לי מהתם שדיתיה והא אמר מר גדול כבוד הבריות שדוחה את לא תעשה שבתורה תרגומה רב בר שבא קמיה דרב כהנא
Menachot 37b:15-17
The Gemara relates: Ravina was walking behind Mar bar Rav Ashi on the Shabbat of the Festival when the corner of Mar bar Rav Ashi’s garment on which his ritual fringes were hanging tore, and yet Ravina did not say anything to him. When he arrived at Mar bar Rav Ashi’s house, Ravina said to him: Back there, along the way, the corner tore. Mar bar Rav Ashi said to him: If you would have told me then, I would have thrown off the garment there, as once one of the ritual fringes is torn no mitzva is performed with the rest, and it is prohibited to walk in the public domain on Shabbat wearing such a garment. This is in accordance with the opinion of the first tanna, who disagrees with the ruling of Rabbi Yishmael. The Gemara raises a difficulty: But didn’t the Master say: Great is human dignity, as it overrides a prohibition in the Torah? This includes the prohibition against carrying on Shabbat in the public domain. That being the case, why would he remove his garment in public? The Gemara answers: Rav bar Shabba interpreted that statement before Rav Kahana:

RAV POALIM

There is no comparison to the situation of Kilayim. Over there, we can clearly see that individual is perpetrating a forbidden act, whereas here there is no clarity that the husband is having relations with his wife in the first place.

There is a double doubt: perhaps the husband will not have relations with his wife, and even if you do say that he will, then perhaps if she tells him that she is having an affair he may not believe her.

There are also sages who are of the opinion that it is not called an act of immorality if there are no witnesses to her deed(s). With all of these reasons, added to the question of whether we need to protect her dignity and honour by not spreading this rumour she does not need to tell her husband.

Even according to the view that if she did tell him and he decided to divorce her, that would only be a rabbinic requirement rather than a Torah requirement.

Therefore if a person wants to be lenient because of the impinging family honour

Machane Efrayim

If a woman went to a Dayan and she told him that she had an affair, should the judge tell the husband of this?

It seems to be that he does, in order to separate her from something forbidden. Even though it is possible that the husband will not believe her. It doesn't make sense to say that if there is a bonafide forbidden action that it should disappear simply because he does not believe her.

There is another problem, however: what will happen if she contradicts the judge? The husband will not believe her, and it will end up being that he has caused this woman and her family to be slandered?

It is better therefore not do anything about it in the long run.