1) THE PENALTY FOR A REBELLIOUS SPOUSE
QUESTIONS: The Mishnah discusses the penalty for a man or woman who rebels against his or her spouse and refuses to fulfill his or her obligations. Rav Huna explains that the rebellion under discussion is refusal of marital relations. Rebbi Yosi b'Rebbi Chanina says that the rebellion is refusal to work; the woman refuses to work for her husband (or provide him with her Ma'aseh Yadayim), or the man refuses to give his wife Mezonos.
It is difficult to understand why the Chachamim instituted a penalty for a husband or wife who rebels with regard to work.
(a) The Gemara earlier (58b) records a dispute about whether the main purpose of the enactment of Mezonos was for the benefit of the woman (so that she will be supported) or for the benefit of the man (so that he will receive her Ma'aseh Yadayim). Rav Huna in the name of Rav says that the enactment was made for the benefit of the woman, and therefore she is entitled to say "Eini Nizones v'Eini Osah" -- "I decline the right to receive the Mezonos [from my husband] in order not to have to give him my Ma'aseh Yadayim." Reish Lakish disagrees and says that the enactment of Mezonos was not for her benefit but for the husband's benefit (so that he receive her Ma'aseh Yadayim), and therefore she is not entitled to say "Eini Nizones v'Eini Osah."
Whose opinion does Rebbi Yosi b'Rebbi Chanina follow? If he follows Rav's opinion, the wife should not be considered to be rebelling when she refuses to work for the husband, because she is allowed to refuse to give him her Ma'aseh Yadayim by saying "Eini Nizones v'Eini Osah." As soon as she stops working for him, the husband should just stop giving her Mezonos, and he has no claim against her. If, on the other hand, Rebbi Yosi b'Rebbi Chanina follows Reish Lakish's opinion that the enactment of Mezonos was made for the husband's benefit, how can the husband be considered rebellious when he does not give his wife Mezonos? He should be entitled to tell her to keep her Ma'aseh Yadayim and not receive from him Mezonos, since the enactment was for his benefit and he may decline the benefit if he wants.
(b) If the rebellion is only a question of a monetary matter in which one of the parties of the marriage does not fulfill his or her monetary obligations, why should the Mishnah make an unlimited penalty (of adding to or taking away from the Kesuvah indefinitely)? The Chachamim should just enact that since she owes him money because she rebelled, he merely collects from the Kesuvah the value of whatever Ma'aseh Yadayim she did not give to him.
(a) TOSFOS (DH Rav Huna) indeed learns that Rebbi Yosi b'Rebbi Chanina follows the view of Reish Lakish that a woman is not entitled to say "Eini Nizones v'Eini Osah," and that is why she is considered rebellious when she refuses to give her Ma'aseh Yadayim to her husband. It is Rav Huna who argues with Reish Lakish earlier. In the Sugya here he follows his own view that a woman may say "Eini Nizones v'Eini Osah."
Why, then, is the husband considered rebellious when he does not give Mezonos to his wife? According to Rebbi Yosi b'Rebbi Chanina, the husband should be entitled to say that the enactment of Mezonos was for his benefit and he is entitled to decline her Ma'aseh Yadayim and not to give her Mezonos!
Tosfos (47b, DH Tiknu) proves from numerous sources that although the enactment of Mezonos was made for the husband's benefit (according to Reish Lakish), the husband is not allowed to decline the Ma'aseh Yadayim and stop giving Mezonos to his wife (if she does not produce enough Ma'aseh Yadayim to support herself). Reish Lakish maintains not that the enactment was made solely for the husband's benefit, but that the enactment was made also for his benefit as well as for her benefit, and therefore neither one may decline to give what the other one is entitled to receive. Hence, the husband may not say that he does not want her Ma'aseh Yadayim and refuse to give her Mezonos.
The RITVA and other Rishonim do not accept the assertion of Tosfos that Rebbi Yosi b'Rebbi Chanina follows the view of Reish Lakish. Rather, they explain that Rebbi Yosi b'Rebbi Chanina agrees with Rav Huna in the name of Rav that a woman may say "Eini Nizones v'Eini Osah." Why, then, is she considered rebellious when she refuses to give her Ma'aseh Yadayim to her husband? Apparently, the case under discussion is where the wife already received the Mezonos for that day, and afterwards she refuses to give her husnband the Ma'aseh Yadayim for that day in return. In days that follow, however, the husband will just keep the Mezonos since she keeps her Ma'aseh Yadayim.
(b) According to the above approach, the rebellion of Melachah involves just one day's worth of Ma'aseh Yadayim which was not given to the husband when it was due (because after that day, the husband simply stops giving his wife Mezonos). That amount should simpyl be deducted from the total amount of the Kesuvah. Why does Beis Din deduct from the Kesuvah indefinitely?
Tosfos and other Rishonim explain that even if Beis Din has the ability to forcefully take the money owed from the rebellious wife or husband, Beis Din does not do so but rather fines them by lessening or increasing the Kesuvah until they agree to fulfill their obligations on their own. Beis Din does not forcefully take away their money because it is impossible for a person to live with a spouse who must continually be forced in order to fulfill his or her obligations ("Ein Adam Dar Im Nachash b'Kefifah Achas"). By altering the amount of the Kesuvah, the defiant party might be persuaded to agree to fulfill his or her obligations willingly.
2) A REBELLIOUS SPOUSE
OPINIONS: The Mishnah and Gemara mention a number of ways in which Beis Din forces a spouse to fulfill his or her obligations to the other. The Mishnah (63a) says that Beis Din forces a defiant woman by decreasing the amount of her Kesuvah and ultimately taking it away entirely. The Gemara cites the opinion of "Raboseinu" who later instituted that instead of gradually reducing her Kesuvah, Beis Din merely proclaims in the synagogues on four consecutive Shabbosim that this woman is rebelling against her husband and that she is going to lose her Kesuvah if she does not change her ways. If she has not capitulated after the fourth week, they take away her entire Kesuvah. The Amora'im here disagree about whether or not the Halachah follows the view of Raboseinu.
On the next Daf (64a), the Gemara says that Beis Din waits twelve months before permitting the husband to divorce her, during which time the husband is not obligated to support her.
In practice, what is the Gemara's conclusion with regard to the proper practice of penalizing a rebellious wife?
The Rishonim apparently disagree about how to understand the order and application of the different enactments mentioned by the Gemara.
(a) According to RASHI, the later Takanah of Raboseinu was not accepted by all of the Amora'im as the Halachah. Rather, the Gemara concludes that the Halachah is "Nimlachin Bah" -- Beis Din delays the divorce and the immediate revocation of her Kesuvah (and reduces the amount of the Kesuvah in the manner described in the Mishnah), and Beis Din attempts to persuade her to change her ways. When the Gemara (64a) says that she is given twelve months, it is in agreement with the penalty of the Mishnah here. However, the Gemara there imposes an upper limit to the penalty; after twelve months of rebelliousness, whatever is left of the Kesuvah is taken away and the husband may divorce her without giving her the Kesuvah or Tosefes.
(b) TOSFOS and other Rishonim maintain that the Halachah follows the view of Raboseinu. The only question among the Amora'im is whether Beis Din must inform her of the consequences of her actions both before and after each public announcement, or only after each announcement. The Amora'im agree that she is fined the entire Kesuvah after four weeks.
The Rishonim disagree, however, about how to understand the enactment to wait twelve months. Does the enactment apply to a woman who wants her Kesuvah, or does it apply to a woman who is ready to be divorced and is willing to forgo her Kesuvah?
1. The RASHBA (cited by the Magid Mishneh, Hilchos Ishus 14:9) writes that the enactment applies to a woman who is ready to forgo the Kesuvah. Although a woman who wants her Kesuvah and maintains her recalcitrance is divorced after four weeks without her Kesuvah, if she says explicitly that she is ready to forgo the entire Kesuvah Beis Din delays the divorce for twelve months. This enactment to wait twelve months was instituted when the Chachamim saw that women were being divorced impulsively, and then they became regretful that they had lost both their husbands and Kesuvah. By giving them time before permitting them to divorce, the Chachamim hoped that the husband and wife would appease each other.
2. The ROSH (5:34) explains that the enactment was not instituted only in a situation where both are ready to get divorced and she does not want her Kesuvah, but also in a situation where she wants her Kesuvah. The husband still must wait twelve months before he divorces her.
3. The RAMBAM (Hilchos Ishus 14:9-10) writes the opposite of the Rashba. The enactment to wait twelve months was instituted only for a rebellious woman who wants her Kesuvah. The Magid Mishneh explains that it is shameful for Jewish women to be divorced out of quarreling ("Mipnei Ketatah"). Therefore, twelve months are given to enable the woman to become appeased. When, however, the woman wants to disolve the marriage immediately because she is disgusted with her husband and she is willing to forgo her Kesuvah, the husband may divorce her immediately and there is no period of waiting at all (because she will not be persuaded to stay with him, due to her disgust with him).
The RIF writes that the enactments underwent further modification later. After the time of the Gemara, the Ge'onim instituted that if she does not want her Kesuvah and they both want to divorce, he may divorce her right away (and he does not have to wait twelve months).
The Gemara explains that the enactments of the Mishnah and of Raboseinu apply only when the woman says that she still wants her Kesuvah and is not willing to be divorced without it. If she is willing to be divorced without her Kesuvah, Ameimar says that "we do not force her" to remain married. The Rishonim disagree about what Ameimar means when he rules that "we do not force her" to remain married.
According to the RASHBAM (cited by the Rosh 5:34) and the RAMBAM (Hilchos Ishus 14:8), this means that if she wants to leave him without a Kesuvah, Beis Din makes the husband divorce her and he cannot force her to remain married to him.
However, according to RABEINU TAM (cited by Tosfos DH Aval, and other Rishonim), Ameimar does not mean that Beis Din forces him to divorce her, but rather that Beis Din does not influence him not to divorce her; if he wants to divorce her he may do so.
HALACHAH: The SHULCHAN ARUCH (EH 77:2) rules that if the woman who rebels is ready to get divorced and to forgo her Kesuvah, she cannot force the husband to divorce her (the opinion of Rabeinu Tam). If he wants to divorce her, he may divorce her right away.
If the woman who rebels demands her Kesuvah, she loses her Kesuvah after four weeks of defiance (like Raboseinu), but the husband must wait twelve months before he divorces her. This follows the view of the Rambam (opinion b:3 above) who rules that that twelve months are given only when she is angry with him, but not when she is disgusted by him and is ready to leave without a Kesuvah.
The REMA adds that some say that the enactment of waiting twelve months after she loses the Kesuvah applied only in the times of the Gemara when a man was permitted to marry a second wife. Nowadays, when a man may not marry a second wife, waiting twelve months would cause the husband to lose out as well (because he will not be able to marry another wife during that time), and thus he is permitted to divorce her immediately.