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Shabbat Parashat Shoftim| 5764

Pninat Mishpat

Claim that Wife Withheld Information on Medical Condition - Excerpts from Piskei Din Rabbani’im VI pp. 193-201
Case: A husband sued for divorce, claiming that his wife did not inform him prior to marriage that she had suffered from a serious disease in her youth that caused her, besides general poor health, to miscarry repeatedly. In fact, the couple had one successful birth and, subsequently, three successive miscarriages. One expert testified that there is a connection between the disease and the miscarriages, and that the one birth was a medical miracle. Other experts said that one could not make a clear connection between the disease and the repeated miscarriages. The husband demanded that she receive a get, or else he should be allowed to remarry if she continues to refuse one.
Ruling of Court of Appeals: [The original ruling dealt, among other points, with the claim that the husband wanted the divorce because of a relationship with another woman, not for the stated reasons. We will deal with a portion of the Court of Appeal’s ruling on one aspect of the dispute.
 If the wife cannot give birth due to a pre-existing medical condition that the husband was unaware of, the husband can claim that the marriage was a mekach taut (agreement under false pretenses) (Tosafot, Yevamot 65). In this regard, it does not make a difference if the information was purposely withheld or whether the other party was also unaware of the full extent of the problem, and in a case with full grounds for mekach taut, the agreement can be annulled. In this case, the husband admits that some time after the marriage he became aware of the situation, yet continued to live with her (and, thus, did not invoke his claim of mekach taut). However, the fact that he knew about the condition by name does not mean that he knew about the alleged result of barrenness, and we, therefore, do not have evidence that he viewed the actual situation as acceptable.
 However, there is logic that the fact that a couple lives together, even if the husband did not reconcile with the situation, prevents him from annulling the marriage later. The Beit Ya’akov (siman 117) explains the Rambam’s ruling that after consummation one cannot annul the marriage, by pointing out that if he nullifies the marriage, then it would turn out that the couple was living in a state of promiscuity. Therefore, we assume that the husband would prefer to allow the marriage to exist and deal later with the circumstances. That logic applies even to this case. On the other hand, it should be possible for the husband to relinquish his rights to claiming mekach taut only in regard to allowing the marriage to stand and avoid “living in sin.” However, in regard to being bound by Cherem Rabbeinu Gershom,which forbids his remarriage until she agrees to accept a get, perhaps he can maintain his claim.
 In the final analysis, since there are medical opinions that do not link the wife’s difficulty in giving birth to her previous illness and because of the fact that the wife was able to provide the family with at least one child, the husband does not have sufficient grounds to enable remarriage (in addition to other factors dealt with by the regional court).
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This edition of  Hemdat Yamim
 is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.

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