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Shabbat Parashat Beshalah| 5767

Pninat Mishpat



Dispute Between Divorced Parent Whether Their Daughter Can Visit Chutz La'aretz - Based on Piskei Din Rabbaniim - vol. V, pp. 183-192
 
Case: A divorced mother wants the daughter in her custody to travel to chutz la’aretz (outside Israel) for up to three months. The father opposes the idea, claiming that one should not leave Israel without due justification.
 
Majority Ruling: The gemara (Ketubot 110b) says that neither spouse can force the other to leave Eretz Yisrael. The Mabit (I, 165) says that similarly either parent can object to his or her children being taken out of Israel. However, perhaps that is only when they leave on a permanent basis.
 The Maharit explains that when the Rosh says that there is no mitzva to go to Eretz Yisrael, he refers to a visit, whereas moving permanently is certainly a mitzva. One can infer that regarding leaving Eretz Yisrael, the same is true and that one violates a mitzva only when he leaves permanently. (The Shiltei Giborim (Sh’vuot, perek 3) states this explicitly.) However, the Rambam (Melachim 5:9) rules that one can leave, even temporarily, only for a limited number of reasons.
 There seem to be two approaches to the reason of the mitzva to live in Eretz Yisrael. One is the mitzva to possess the Land, either by conquest, acquisition, or settlement. The other is the opportunity it affords to fulfill land-linked mitzvot.The Maharit and the Ramban posit that the main point is the settlement and therefore it depends on one’s permanent status. The Rambam does not view the mitzva as an independent mitzva but a rabbinic one because of the land-linked mitzvot. Therefore, even leaving temporarily is a problem because of the interim, missed opportunities. The land-linked mitzvot do not generally apply to women [see the source for background]. However, there appears to be an additional rabbinic mitzva to live in the Land because of its sanctity; this does apply to women. The latter element follows the long-term place of residence. If this is the case, then women would be limited only in leaving Eretz Yisrael on a permanent basis, whereas men would have a problem even for a visit.
 The Yerushalmi states that women cannot force their husbands to move to Eretz Yisrael these days because they no longer have a mitzva. Although he says that a wife can refuse her husband’s decision to leave Eretz Yisrael, this refers to a specific case and is not a sign that she has an obligation to live in Eretz Yisrael. [See details in the source].
 In the final analysis, there are three opinions regarding a woman’s obligation to live in Eretz Yisrael and not leave. According to the Yerushalmi, there is none; therefore, in some cases, her husband can make her leave. According to the Shiltei Giborim, both men and women can leave temporarily. According to the Rambam, a man needs special reasons to leaving temporarily, but a woman does not. According to all opinions, the father does not have fundamental grounds to object to his daughter’s visit abroad.
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Dedication

This edition of Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.
Hemdat Yamim is also dedicated by Les & Ethel Sutker of Chicago, Illinois
in loving memory of Max and Mary Sutker and Louis and Lillian Klein,z”l.
May their memory be a blessing!

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