QUESTION: The last Mishnah of the Masechta discusses the grounds for which a man may divorce his wife. This Mishnah seems to be out of place. It would seem more appropriate to place this Mishnah at the beginning of the Masechta, since it is so fundamental to the topic of Gitin. Moreover, the Mishnah which does appear at the beginning of the Masechta seems to be out of place; the first Mishnah discusses a somewhat uncommon, random case of a Shali'ach who delivers a Get from Medinas ha'Yam to Eretz Yisrael, who must state a specific formula when he hands over the Get. Why does the Masechta start with the laws of a specific, uncommon case, instead of discussing the fundamental reasons for which a man may divorce his wife -- a discussion which it leaves until the very last Mishnah?
ANSWER: The last Mishnah cites the opinion of Beis Hillel who maintains that a man may divorce his wife even if she burns his food. Rebbi Akiva goes further and rules that a man may divorce his wife simply because he has found a "more fitting woman."
One might mistakenly conclude from such rulings that marriage is not a sacrosanct institution in Torah law, and that wives may be chosen and sent away at whim. The truth is that a closer look at the words of the Chachamim reveals that the opposite is true. In many places the Chachamim emphasize how terrible divorce is and how it should be avoided at all costs. (See, for example, the Gemara in Gitin 90b and Sanhedrin 22a.)
Perhaps Rebbi Yehudah ha'Nasi did not want to begin the Masechta with this Mishnah for this reason. If this had been the first Mishnah it would have set the tone of the entire Masechta and may have caused a loss of respect for marriage. Therefore, the redactor of the Mishnayos left this Mishnah until the very end of the Masechta, after all of the Mishnayos which discuss the detailed laws of a Get and how the writing of every letter in the Get, as well as its delivery, must be done with great care and caution. Once one has learned those Mishnayos and has become aware of how ominous is the giving of a Get, the Mishnah reveals that the Torah nevertheless allows divorce even in situations which do not demand it (according to Beis Hillel). (The Torah obviously must have good reasons for allowing divorce in such situations despite the fact that it is so discouraged.)
Support for this idea may be found in the words of the MELECHES SHLOMO at the beginning of Gitin. He quotes the TOSFOS SHANTZ who asks why the Mishnah says "ha'Mevi Get," wording which implies that the delivery of a Get is b'Di'eved and not l'Chatchilah (see Chulin 3a, 13b). He answers that the Mishnah means that the giving of a Get is generally discouraged, as the Gemara at the end of the Masechta implies, and therefore the giving of a Get is never the preferred, l'Chatchilah course of action. According to the explanation offered above, the Tana follows a single theme when he avoids starting the Masechta with the subject of the last Mishnah, and when he uses the word "ha'Mevi" in the first Mishnah of the Masechta. The Gemara expresses this theme when it concludes the Masechta with an emphasis on how discouraged is divorce.
QUESTION: The last Mishnah in Gitin states that Beis Shamai maintains that a man should not divorce his wife unless he found her to be involved in immoral activities. Beis Hillel maintains that a man may divorce his wife even if she merely burned his food. (See TIFERES YISRAEL #57 who writes that this means that she did so deliberately in order to anger him.) Rebbi Akiva maintains that a man may divorce his wife even if he found a more attractive woman to marry.
Rebbi Akiva apparently is consistent with his opinion in Shabbos (64b). The Gemara there cites a Beraisa which explains the verse, "The Davah (bleeding woman) is in her Nidah" (Vayikra 15:33). According to the "Zekenim Rishonim," this verse means that a Nidah may not dye her eyes, apply rouge to her face, or wear colored clothing. RASHI (DH b'Nidosah) writes that the Zekenim Rishonim understand the word "Nidah" to mean that a woman in this state should be distanced from her husband.
This was the accepted Halachah until Rebbi Akiva came and taught that if the woman who is a Nidah may not beautify herself, she will become repulsive to her husband, and eventually her husband will divorce her. Rebbi Akiva's ruling there is consistent with his opinion in the Mishnah here. Since Rebbi Akiva maintains that a man may divorce his wife if he has found a more attractive woman to marry, this would be a serious and common concern whenever his wife became a Nidah if she would not be allowed to beautify herself during that time.
Although Rebbi Akiva is consistent in his rulings, the Halachah in practice seems inconsistent. The SHULCHAN ARUCH (EH 119:3) writes that "a man should not divorce his first wife unless he has found some Ervas Davar (matter of promiscuity) in her. It is not fitting to rush to send away his first wife." The Shulchan Aruch clearly does not rule in accordance with the view of Rebbi Akiva in the Mishnah here.
The BEIS SHMUEL (#3) points out that the ruling of the Shulchan Aruch is problematic, because he seems to rule in accordance with the view of Beis Shamai. The Halachah, however, almost never follows the view of Beis Shamai (see TOSFOS to Sukah 3a, DH d'Amar Lach). Moreover, his words, "It is not fitting to rush to send away his first wife," seem to have no source and are out of place. Therefore, the Beis Shmuel suggests that it is possible that the Shulchan Aruch actually rules in accordance with the view of Beis Hillel. When the Shulchan Aruch writes the words "Ervas Davar," he means either that "Ervah" (immorality) or some other "Davar" (another matter, like the burning of food) is sufficient grounds for divorce. (See RASHI on the Mishnah (DH Ervas) who writes that this is Beis Hillel's understanding of the verse "Ervas Davar.") Although one is permitted to divorce because of some unfavorable thing his wife did (such as burning his food), nevertheless it is not fitting to rush to divorce her for such a thing (see 90b).
While the Halachah with regard to when a man may divorce his wife does not follow the view of Rebbi Akiva, but rather Beis Hillel, the Halachah does follow Rebbi Akiva's view in the laws of Nidah. The SHULCHAN ARUCH (YD 195:9) writes, "With difficulty the Chachamim permitted her to adorn herself during her days of Nidah only so that she should not become repulsive to her husband."
How is this apparent contradiction in the Halachah to be reconciled?
(a) The MA'ADANEI YOM TOV (#3) on the Rosh in Nidah (10:8) answers that this is not contradictory. Although the Halachah is that a person is forbidden to divorce his wife merely because he found a more attractive woman to marry, nevertheless there still is a concern that if she becomes repulsive to him he will find an excuse to divorce her.
(b) The TORAS HA'SHELAMIM (YD 195:11) answers that although Rebbi Akiva states that the reason why a Nidah is allowed to adorn herself is so that her husband will not divorce her, there are other reasons to permit her adornment as well. Although the Halachah is that a man may not divorce his wife because he found a more attractive woman, a man's wife should not allow herself to become repulsive to her husband even if he will never divorce her, as it may affect their marital harmony. This is sufficient reason to permit her to adorn herself when she is a Nidah, even though her husband will not actually come to divorce her if she does not.
The TORAS HA'SHELAMIM cites proof for this reasoning from the Gemara in Nidah (31b). Rebbi Meir there asks why the Torah says that a Nidah must wait seven days until she is permitted to her husband. He answers that if there was no waiting period, a husband would become accustomed to his wife and would no longer be interested in her. The Torah declares that she is Tamei and forbidden for seven days so that the husband will be attracted to her in the same way he was when they were first married. The Toras ha'Shelamim argues that since the reason for the Mitzvah of Nidah is to promote Shalom Bayis, it is illogical that she should be forbidden to adorn herself when she is a Nidah, which would make her repulsive to him and have achieve the opposite objective of that which the Torah intended. (D. BLOOM)


QUESTION: The Gemara quotes the verse in Malachi (2:16), "For hatred, send her away." Rebbi Yehudah explains that this verse means that if a man hates his wife, he should divorce her. Rebbi Yochanan gives an apparently opposite explanation: "Someone who sends his wife away is hated." The Gemara reconciles the two opinions. Rebbi Yochanan refers to a man's first marriage, and Rebbi Yehudah refers to his second marriage.
(The CHIDUSHEI CHASAM SOFER points out that the distinction between a first and second marriage is apparent in the Torah. The Torah discusses a man who marries a wife who does not find favor in his eyes because he finds in her an "Ervas Davar," a "matter of immorality," and then he divorces her (Devarim 24). This implies that a man may divorce his first wife only if he finds an Ervas Davar. However, the next verse discusses a second man who marries the woman after her divorce, and he, too, hates her and divorces her. That verse makes no mention of an Ervas Davar, implying that a man who hates his second wife, even for no apparent reason, may divorce her.)
The Gemara cites proof for the distinction between a first and second marriage from Rebbi Elazar's statement about one who divorces his first wife. Rebbi Elazar said that when a man divorces his first wife, even the Mizbe'ach weeps. The verse in Malachi (2:11) relates that the prophet reproached the Jewish people at the beginning of the period of the second Beis ha'Mikdash for marrying Nochri women. In the following verses, the prophet reproached them for an even worse transgression: "And this is the second sin that you do, for which the Mizbe'ach of Hash-m is covered with tears, crying and sighing, so that Hash-m will no longer turn to your offerings, to take your sacrifices willingly. And if you ask, why is Hash-m angry? It is because Hash-m testified between you and between the wife of your youth whom you have betrayed, even though she was your friend and the wife of your covenant."
This later verse describes a graver sin. Previously, Malachi reproached the unmarried men who had married Nochriyos. Now he reproached men who were already married to Jewish women for taking second wives who were not Jewish.
What was the specific grievance of the Jewish wives about their husbands who took Nochri wives, if Hash-m already reproached the men for marrying Nochriyos?
ANSWER: The CHASAM SOFER quotes the prophet Malachi who said about men who married Nochriyos: "Hash-m will cut him off, and he will not have Er or Oneh" (2:12). The Gemara in Shabbos (55b) explains that this means that he will not have an "Er" among the Chachamim, meaning someone who is sharp ("awake") to understand and instruct the Torah scholars. He also will not possess a son who is "Oneh," one who "answers" among the pupils. The righteous women complained that because their husbands married Nochriyos as well, they will not merit to have righteous children immersed in Torah study.
The Chasam Sofer explains that the righteous Jewish women were concerned that their children would be swayed away from the ways of Hash-m by the Nochri women. Even though women are not commanded to fulfill the Mitzvah to "be fruitful and multiply" (see Yevamos 65b), they cried because they preferred to remain barren rather than to bear wicked children who turn away from Hash-m. Their claim may be understood in light of the Gemara in Berachos (17a) which teaches that women earn their share of Olam ha'Ba by sending their sons and husbands to learn Torah.
The Chasam Sofer suggests that this is what the women meant when they quoted the verse, "For hatred, send her away," meaning that they preferred to be divorced than to bear children in vain. The Chasam Sofer explains that this is the intent of the verse, "And what does the one request? The seed of Hash-m" (Malachi 2:15). "The one" refers to the verse in Bereishis (2:24) which states that a man shall cleave to his wife and they shall become one flesh. (See RASHI to Bereishis 2:24, who explains that "one flesh" refers to the child that is created by the man and woman together.) The purpose of marriage is to bring into the world "the one," which is "the seed of Hash-m" which serves Him. There is no purpose in bringing into the world children who turn away from Hash-m.
The Chasam Sofer explains further the deeper meaning of the verse, "And they shall be one flesh." The baby will have the spiritual qualities of both his father and mother, male and female. This means that he will have the female characteristic of "receiving" from his teacher, and he will have the male characteristic of being able to "give" and transmit those teachings to others and influence them. When those characteristics are combined in one person, a unique degree of unity is achieved, and Hash-m's objective of "He created them male and female" (Bereishis 1:27) is fulfilled.
This is the purpose of marriage. The husband and wife should merit to bear children who embody "one flesh," the unity that is the seed of Hash-m. (D. BLOOM)