Ishut - Chapter 15

Conjugal rights are a privilege granted to a wife, and she has the right to forego them if she and her husband consent. Fathering children, by contrast, is one of the Torah’s commandments, and a woman may not prevent her husband from fulfilling his obligation. See Yevamot 65b.
The Turei Zahav (Even HaEzer 1:1) and the Beit Shmuel 1:1 question the Rambam’s decision. For, as stated in Halachah 16, even after the person has fulfilled the mitzvah of being fruitful and multiplying, he is obligated by Rabbinic Law to continue to father children. Seemingly, just as a man’s wife may not prevent him from fulfilling the obligations imposed on him by the Torah, so too, she may not prevent him from fulfilling the obligations imposed on him by our Sages.
The Pitchei Teshuvah 1:1 resolves this difficulty by quoting the Chidah, who explains that our Sages did not equate the obligation to continue to father children with the Torah’s obligation to be fruitful and multiply. As long as a man endeavors to continue to father children from time to time, it is acceptable. There is no need to persist with the same perseverance as one who has not yet fulfilled this mitzvah. (See also the notes on Halachah 7.)

Rabbenu Nissim explains that although the mitzvah is incumbent on the man, since the woman takes an active part in its fulfillment, she receives a portion of the reward.

The Mishnah (Avot 5:22; according to the Rambam, this is a baraita) states: ‘‘At eighteen, to the wedding chamber.’’ The Rambam interprets this to mean: in one’s eighteenth year of life.
Note the Shulchan Aruch (Even HaEzer 1:3), which states that the optimum way of performing the mitzvah is to marry earlier.

The Shulchan Aruch (ibid.) states that the Jewish court should compel a Jewish male to marry at twenty if he is not devoting his time to the study of Torah. The Rama, however, states that this is not the custom in the present age.

See Yevamot 63b.

The Turei Zahav 1:6 interprets this expression as meaning that, at the outset, this is not a desirable course of action to follow.

This condition applies also to the license to delay marriage mentioned in the previous halachah.

In connection with this law, the commentaries cite Yoma 29a, which states: ‘‘Thoughts of sin are more damaging than sin itself.’’ Instead of pointing his life to spiritual refinement, the individual is directing himself to sinful thoughts.

But if a man has only several sons or only several daughters, he is not considered to have fulfilled the mitzvah.

See Chapter 2 for a definition of these terms. Since this child is incapable of conceiving children, the child’s father is not considered to have fulfilled the mitzvah.

Tosafot (Yevamot 62b) states that even if the grandchildren are two males or two females, one is considered to have fulfilled this mitzvah. The Shulchan Aruch (Even HaEzer 1:6), however, quotes the Rambam’s view.

Tosafot states that even if the convert’s children did not themselves convert, the convert is considered to have fulfilled this mitzvah. (See Beit Shmuel 1:12.)

From the Shulchan Aruch (Even HaEzer 23:1), one can infer that intimate relations with a minor are considered as emitting wasted seed, one of the more severe prohibitions of the Torah. The Rama (loc. cit.:5) and other authorities, however, differ and explain that as long as relations are carried out in an ordinary manner, having relations with a minor or an aylonit does not violate this prohibition.

Rav Moshe Cohen states that since, as mentioned in Halachah 16, a person is obligated to continue fathering children, a man is obligated to marry a woman who can bear children even after fulfilling the mitzvah. The Maggid Mishneh states that in principle the Rambam also accepts this ruling, as indicated by his wording in Hilchot Issurei Bi’ah 21:26. In this instance, he was merely stating the Scriptural Law.
The Rama (Even HaEzer 1:3) states although it would be proper to rebuke a person for marrying such a woman, this is not done in the present age.

As mentioned previously, in the Ashkenazic community it is customary not to marry more than one wife. All the laws mentioned in this halachah must be viewed with that principle in mind.

In his Commentary to the Mishnah (Yevamot 6:7), the Rambam writes that the source for this practice is Sarah’s giving Hagar to Abraham: ‘‘After ten years in which Abram had lived in the Land of Canaan’’ (Genesis 16:3). Since this period passed without her bearing children, she provided him with another wife who could.

The Rivash (Responsum 15, quoted by the Rama 154:10) explains that if after having one child together, a couple do not have children for ten years, they are not forced to divorce.

The Rama (Even HaEzer 1:3) states that in his time, it was no longer customary to compel a man to divorce a woman who has not borne children to her husband.

I.e., rather than bear the expense of paying her ketubah immediately, the man desires to remain married; or from the woman’s perspective, rather than have to earn her own subsistence, she desires to remain married.

Chaggigah 15a states that unless a man releases semen as one shoots an arrow, he will not be able to father children.

As reflected in the following halachah, the Rambam maintains that unless the man’s wife explicitly claims that he does not release semen as one shoots an arrow, it is assumed that the affliction is the woman’s. Therefore, she is not entitled to the essential requirement of the ketubah.
The Ra’avad differs and maintains that for the responsibility to be placed on the woman, she must have been married to two other men previously, and in both instances, divorced after ten years for not bearing children. TheRama (Even HaEzer 154:6) accepts this opinion.

See Chapter 23, Halachot 2 and 3.

The husband keeps possession of the money he is required to pay his wife by virtue of her ketubah. Although our Sages accepted her word when she issues a claimagainst her husband, they did so only when that claim was definite. If she is in doubt, the money should remain in the possession of its immediate owner.

The Beit Yosef (Even HaEzer 154) states that as long as a woman has given birth to one child, whether a son or a daughter, she is not given the prerogative of making such a claim.
The Ma’aseh Rokeach explains that this refers to an instance in which the man fathered children before marrying this woman, but then his physical condition deteriorated, and, according to the woman’s claim, he is no longer able to release semen in an ordinary way. Were this not the case, he would be compelled to divorce her in order to fulfill the mitzvah of having children. Since he has, however, fulfilled that mitzvah, he is not compelled to divorce his wife. Therefore, it is the woman who must take the initiative.

As reflected in the ruling of the Shulchan Aruch (Even HaEzer 154:6), other authorities emphasize that the woman’s request must be made solely for this reason. If the court feels that she desires [the money due her by virtue of] her ketubah or to marry another man (Be’urei HaGra 154:25), her request is not accepted.

Yevamot 65b states ‘‘she needs a staff for support and a spade for burial’’ — i.e., sons to support her in her old age and to take care of her funeral arrangements.

The Shulchan Aruch (Even HaEzer 154:11) follows the understanding of Rabbenu Asher, who interprets this ruling as applying even when it was possible for the couple to engage in marital relations during the situations mentioned. It is possible that just as their conduct aroused negative spiritual influences resulting in illness or imprisonment, those negative influences — and not the physical condition of the man or woman — prevented them from having children. From the Rambam’s Commentary to the Mishnah (Yevamot 6:7), it does not appear that he shares this understanding.

Even within a period shorter than ten years (Rabbenu Asher).

She is, however, permitted to marry another man (Shulchan Aruch, Even HaEzer 154:12).

The Beit Shmuel 154:29 emphasizes that this law and the following law apply only when the court does not suspect that the woman desires to marry another man. This is also reflected in the Rambam’s wording, which indicates that her claim comes as a response to the court’s initiative.

Although the Ra’avad differs and does not require an oath in this situation, the Maggid Mishneh and the Kessef Mishneh support the Rambam’s position. It is the Rambam’s position that is accepted by the Shulchan Aruch (Even HaEzer 154:15).

It is possible that the woman is not barren. It was merely that the two did not merit to conceive children together (Yevamot 64a).

Although a factor must normally repeat itself three times for a chazakah (a presumption that can be relied on) to be established, an exception is made with regard to the laws of marriage. In this context, the opinion that considers a twofold occurrence to be a chazakah is followed.

This ruling applies only if the husband had been unaware of the woman’s condition previously (Chapter 24:1-2).

As reflected in the Rambam’s Commentary to the Mishnah (the conclusion of Nedarim), the Rambam does not interpret this as referring to an instance where the husband is sexually impotent entirely. Instead, it refers to a situation in which he can function, but it is the woman’s belief that he will never conceive children. See the Lechem Mishneh and the interpretation of the Ralbach (Responsum 32). If, however, the woman were to claim that her husband is impotent, her word would be accepted.
Note, however, the Rashba (Vol. I, Responsum 628) and K’nesset HaGedolah (Even HaEzer 154:60), which interpret this halachah as speaking about an instance where the husband is sexually impotent.

In his Commentary to the Mishnah (loc. cit.), the Rambam states that, in theory, it would be proper to compel the husband to grant his wife a divorce immediately. This is not done, however, out of fear that her claim is untrue and she merely desires to marry another man.
He continues, stating that the court should try to develop communication between the couple. If those efforts fail, a compromise should be negotiated — e.g., in return for not compelling the woman to wait ten years for the divorce, the amount of money the husband is required to pay because of the ketubah should be reduced.

Yevamot 62a states: ‘‘[Although a man] fathers children in his youth, he should continue to do so at an advanced age, as implied by [Ecclesiastes 11:6]: ‘In the morning, sow your seed; and in the evening, do not withhold your hand.’’’
As mentioned above, the Chidah explains that as long as a man endeavors to continue fathering children from time to time, it is acceptable. One need not attempt to conceive children at every opportunity. Based on this decision, there are authorities who permit the limited use of certain birth control devices. The matter is not, however, entirely clear cut and should be discussed with a competent Rabbinic authority with regard to one’s actual conduct.

Similarly, having children leads to the coming of the Redemption. Yevamot 63b states that the Mashiach will not come until all the souls destined to be conceived are born.

The Shulchan Aruch (Even HaEzer 1:8) explains that this commandment applies when the husband cannot support a wife who can bear children and increase the size of his family.

See Yevamot 62b, which states: ‘‘Any man who is unmarried is left without happiness, without good and without blessing.’’ Rav David Cohen quotes Rav Yitzchak Alfasi as maintaining that the requirement to marry stems from Scriptural Law and not from our Sages, as the Rambam maintains.

See Hilchot Issurei Bi’ah 21:26, which states that it is permissible for a woman never to marry.

Here the term likanot, translated as ‘‘admonish,’’ has a specific meaning: to warn one’s wife not to enter into privacy with another man. If this warning is disobeyed, the woman must undergo the rites of a sotah.

Sotah 3a. Although this is the subject of a difference of opinion among our Sages, the Rambam follows the opinion of Rabbi Akiva.

See the conclusion of Hilchot Sotah for a more detailed treatment of this subject.

See Hilchot De’ot 5:4-5.

Eruvin 100b states that a woman requests intimacy with her heart.

See Chapter 24, Halachah 15ff.