Siman 11

The Rambam wrote in the second chapter of Sotah: Any woman who had a kinui and a stirah and did not drink the bitter waters because her husband did not want to make her drink, whether she did not want to or whether a witness to impurity came or she confessed or she was among those women who are not fit to drink or the beit din warned on her behalf, since she has been forbidden to her husband in any case—she is forbidden to this one with whom she secluded herself forever, just as she is forbidden to her husband. And if he transgressed and married her—they remove her from him with a get even if she had several children from him. From the oral tradition they learned: just as she is forbidden to the husband, so she is forbidden to the paramour. Thus far his words. And one should not wonder—when her husband does not want to make her drink and she stands and cries "I am pure, give me the bitter waters," why is it in his power to forbid her to the suspect? For certainly it is so, that when she secluded herself with him after the kinui she became forbidden to the husband and also to the suspect when the husband divorces her—by the decree of the Torah, and the Torah decreed that they have the ability to discern if she is pure or not with the bitter waters, and this is with the will of both of them, but when one of them does not consent she remains in her prohibition. And there is one who says that the beit din can compel him to make her drink—and it is not so, for since he said "I do not want to make her drink," even he himself can no longer make her drink.

Our teacher, the Rema, wrote that the same law applies if she became forbidden to her husband because of him—she is forbidden to him. Thus far his words. The explanation of his words: For this which the Torah decreed, that just as she is forbidden to the husband so too she is forbidden to the paramour, is not specifically when there were witnesses of kinui and stirah, but even if she became forbidden to her husband through witnesses of unseemly conduct, as will be explained—she is forbidden to the suspected man [the Gra]. And likewise, even if she did not become forbidden by the strict law, but rather her husband divorced her because of an unseemly matter—she is also forbidden to the suspected man, except that in this there is a distinction between whether she has children from him or does not, as will be explained [see Beit Shmuel, subsection 3].

If the paramour came upon her by force and she is the wife of an Israelite, such that she is not forbidden to her husband—some say that she is also permitted to the paramour after the husband dies or divorces her, but if the husband is a kohen and she became forbidden to him, she is forbidden also to the paramour even though the paramour is an Israelite. Nevertheless, if the paramour is a kohen and the husband is an Israelite and she was forced and is not forbidden to her husband—nevertheless, she is forbidden to the paramour because of his priesthood, as he is no better than any other kohen to whom she became forbidden. However, in the Jerusalem Talmud, chapter 5 of Sotah, it is explicitly stated that even though she is permitted to her Israelite husband when she was unintentional, nevertheless, if he was intentional—she is forbidden to him. And so too the reverse: when she was intentional, even if he was unintentional—she is forbidden to him because she became forbidden to her husband, and unintentional and forced have one law. According to the Jerusalem Talmud, she is not permitted to the paramour unless both of them were unintentional, though there are those who wish to say that according to the conclusion of the Jerusalem Talmud it is not so—but it does not appear so. However, the Rosh, of blessed memory, wrote simply that it is not logical to forbid her to the paramour when she is permitted to the husband. And some say that even in a case where by the law she is permitted to the paramour, nevertheless one should forbid her to him as a penalty, and if she married—she shall not leave. And know that many of the great later authorities agreed that in any case where she was forbidden to the husband and was forbidden also to the paramour, if a second paramour later came upon her willfully—she is forbidden also to him, even though she was already forbidden to the husband. There are many proofs for this, and some wished to reject some of the proofs—but it is not a rejection. Our teachers, the authors of the Tosafot, wrote that even though we do not forbid based on seclusion, and consequently she is permitted to the one with whom she was secluded after the death of the husband, nevertheless, if the one who secluded knows that he came upon her—she is forbidden to him by the law, even though she was not forbidden to the husband because there are no witnesses and there was no kinui or stirah and it is not in the power of the beit din to forbid her to him; nevertheless, he who knows the truth—she is forbidden to him. And there are those for whom she is forbidden even to the husband even without kinui and stirah if the matter is clear that she committed adultery, as will be explained, for this is like actual witnesses.

The Rambam, of blessed memory, wrote [ibid.]: If witnesses came regarding her that she was secluded with this man, and they came and found an ugly matter, such as if they entered after him and found her girding a belt, or they found spittle above the canopy and the like, if her husband divorced her for such an ugly matter—behold, she may not marry the suspected man, but rather is forbidden to him. And if he transgressed and married her and she had children from him—she shall not leave, but if she did not have children from him—she shall leave. In what case does this apply? When the city gossiped about her and about the suspected man for a day and a half or more, and they said "so-and-so committed adultery with so-and-so" and the rumor did not cease, provided that she or he did not have enemies who spread the rumor. But if there was no gossip regarding this matter in the city, or if the rumor ceased not out of fear, if she married the suspected man—she shall not leave even if she does not have children; even if one witness came that she committed adultery with him—she shall not leave. Thus far his words. And according to his system, with witnesses of an ugly matter and a rumor that does not cease—we remove her from the suspect when they have no children, but when they have children—she shall not leave. And from the husband we do not remove her at all except with witnesses of defilement, for then even if she has several children she shall leave. And one should not wonder—how is it possible that the husband does not remove her and the suspected man removes her, for are not the husband and the adulterer equal, as in every place she is forbidden to the husband she is forbidden to the adulterer as has been written? However, this is regarding certain intercourse that the Torah decreed that in every place she is forbidden, she is forbidden to both of them, but in a case of doubt we are stringent regarding the suspected man and not regarding the husband [Beit Shmuel], and only the husband has the power to divorce her against her will even in this time in such a case, but we do not compel him and we do not offer him advice to keep her. And the Rambam wrote in chapter 24 of Ishut that she does not require a warning, for since there are witnesses of an ugly matter and a rumor that does not cease—she shall leave without a ketubah, and more than this is implied there explicitly, that this does not require a rumor that does not cease, but rather with witnesses of an ugly matter alone—she shall leave without a ketubah, see there. And there are many types of ugly matters: that when she was secluded with him and they stayed for a duration of defilement and witnesses saw the ugly matter, such as that she is standing above the bed and putting on trousers or girding a belt, or that they found moist spittle above the bed which is recognizable that at the time of the transgression she spat above the bed, and even though it is possible to attribute that this was when she cohabited with her husband, nevertheless since it is moist it appears that it was at the time she was with the suspected man [see Beit Shmuel subsection 5 and it requires further study]. And likewise if they saw the place of the shoes reversed near the bed which is recognizable that they removed their shoes and lay together in the bed, or that they were exiting from a dark place, or that they were bringing one another up from a pit which is recognizable that they were there and cohabited and the like, or that they saw him kissing her on her garment, or they saw them kissing one another, or they entered one after the other and closed the doors with a lock, and similar to these matters according to the perception of the beit din [and this is the opinion of the Rif and the Rambam and Rabbeinu Tam and the Behag and the Rashba and the Ittur].

And there are some of our teachers who hold that even in this, the husband and the suspected man are equal: that if there are witnesses of unsightly conduct and a rumor that does not cease – we remove her even from the husband when they have no children. But with only one of them, with witnesses of unsightly conduct alone or with a rumor that does not cease alone – we do not remove her even from the suspected man even if she has no children, and only ab initio is it forbidden for him to marry her, for even when there is only a mere slur – he shall not marry her ab initio. However, a rumor that stems from enemies – this is nothing, and even ab initio she is permitted to the suspected man according to all opinions. And know that in every place where we wrote witnesses of unsightly conduct and a rumor that does not cease – it is necessary that the rumor emerged not on account of the witnesses of unsightly conduct, for if not so, it is a single matter. And there are some of our teachers who hold that with witnesses of unsightly conduct we remove her even from the husband, but not with a rumor that does not cease, and from the suspected man we remove her with one of them. And where they have children – we do not remove her neither from the husband nor from the suspected man even with both things. And there are some of our teachers who hold that even from the husband we remove her with one of them when they have no children, for these holders of opinions hold that these matters are close to witnesses of defilement, and since the witnesses or the husband himself saw this unsightly thing, she must perforce leave him; and only where they have children, where there is concern for the slur upon the children and they are in the presumption of being fit since most acts of intercourse are after the husband, we are not stringent that she must leave so as not to strengthen the slur upon the children, and only with witnesses of defilement must she leave even when they have children, and likewise if the husband himself saw the defilement, for so the Torah decreed – and the primary ruling is according to the first opinion in the previous section. However, according to all opinions, even in a case where the husband is not required to remove her and he did remove her – it is forbidden for the suspected man to marry her, and if the husband removed her based on a rumor that does not cease or based on witnesses of unsightly conduct, and the suspected man married her and they have no children – we remove her from him, and so our teacher, the Rema, ruled. And some say that with witnesses of unsightly conduct we remove her but not with a rumor that does not cease, according to the opinions that we do not remove them with one of them, for then we do not concern ourselves with a rumor even if the husband removed her. And know, that a rumor that does not cease is so called even when the rumor was not established in beit din. And witnesses of unsightly conduct must be fit and not those disqualified for matters of forbidden relations by the Torah, and one witness in an unsightly matter – is nothing at all, for even if she were actually defiled it is nothing, except that regarding actual defilement when the witness is trusted by him the husband must concern himself with his words, but with a witness of unsightly conduct it is nothing at all, and she is permitted even to the suspected man. However, with a rumor that does not cease, even according to those who permit with a rumor that does not cease alone, nevertheless when there is a witness of unsightly conduct for this – one must concern himself with this, and even with those disqualified for matters of forbidden relations one should concern himself.

Our teacher, the Rema, wrote: Two witnesses of unsightly behavior combine even though they saw one after the other, and the unsightly behavior that this one saw, that one did not see. Thus far his words. And even though this is called "special testimony," and in capital cases it is not valid testimony as written in Choshen Mishpat siman 30, nevertheless, since in monetary laws it is valid testimony, we judge in this matter like monetary laws, for matters of prohibition are equal to monetary matters [Beit Yosef]. And even though regarding inquiry and investigation it will be explained that we compare it to capital cases, this is because from the Torah even in monetary matters inquiry and investigation are required, and only because of "locking the door" did they abolish it; therefore, in prohibitions, they established it according to the original law, which is not the case regarding special testimony [Beit Shmuel]. And even though for kiddushin they do not combine as written in siman 46—this is because when they did not see two together they did not intend for the purpose of kiddushin [ibid.], and in prohibitions this is not applicable. And there are those who disagree in this and hold that even in prohibitions special testimony is disqualified [Ran, chapter 7 of Gittin], but our teacher, the Rema, did not bring this opinion at all, and so our teacher, the Beit Yosef, decided the law in his great book in Choshen Mishpat there. And so too regarding two witnesses of impurity, they combine even though the impurity that this one saw, that one did not see [Choshen Mishpat], and although there are some of the great authorities who hold that one cannot prohibit a woman to her husband through special testimony, nevertheless, since our teachers, the authors of the Shulchan Aruch, ruled so, and so wrote the Maharshal [Yam Shel Shlomo, chapter 2 of Yevamot] and many of the great later authorities—we hold so for halacha and practice [see the Gra, subsection 47, and Noda BiYehuda, siman 72]. Furthermore, that which special testimony is disqualified for capital cases we learn from "he shall not be put to death by the mouth of one witness" [Makkot 6b], for it cannot be interpreted according to its plain meaning that there is only one witness here—for regarding that another verse is written: "by the mouth of two witnesses shall the one who is to die be put to death," but rather it comes to teach regarding special testimony, and we do not learn monetary laws from this because in monetary matters one witness is effective for an oath [Tosafot ibid.] which leads to monetary payment, and in cases of zenut, one witness is also effective regarding a sotah; therefore, it is impossible to disqualify special testimony in zenut even if we say that in gittin and kiddushin it is not effective, and even though in the case of the beheaded heifer one witness is effective—this is not relevant to capital cases [and the explanation of the Yerushalmi, first chapter of Sotah, is not that it distinguishes between the warning and the seclusion as the Korban HaEdah wrote; on the contrary, it infers from seclusion to warning and concludes that it depends on the dispute of Rabbi Yehoshua ben Korcha and the Sages, and the halacha is like Rabbi Yehoshua ben Korcha and it refers to both of them, and examine this closely].

There is much to scrutinize regarding what is called a "loathsome matter," for behold, regarding yichud alone she is not forbidden, even if they secluded themselves for the sake of zenut, for we do not forbid based on yichud; and even for one who is suspected, we do not forbid based on yichud alone. And if they closed the door—certainly this is a loathsome matter [Beit Shmuel]. And the Maharshal wrote: If they saw them lying one upon the other with garments, as long as they did not see fleshly proximity, this is nothing but a loathsome matter, for this is not the way of adulterers; but when they saw fleshly proximity, it is actual tumah. Knocking on the door of her room or speaking with her with a wink of the eye is not called a loathsome matter, and it appears that there is no general rule in this, but rather the matter of loathsomeness is according to the assessment of the beit din. However, the husband himself, when he wishes to be pure, must be more concerned even if by law they cannot compel him to divorce her.

A husband who divorced his wife due to an ugly matter—the one suspected may not marry her initially, even if after the divorce from her husband she married another and was divorced from him, and even according to the poskim who do not forbid based on an ugly matter alone even regarding the one suspected. And if she married—she shall not be removed, even according to the poskim who hold that we remove her from the one suspected when she has no children from him; nevertheless, since another intervened, she shall not be removed even when she has no children from him. And some have written a general rule in this: that in any case where by law she would be removed from the husband—the intervention of another is of no avail; but in a case where by law she would be removed from the one suspected and not from the husband—the intervention of another is of avail. And it is a simple matter that when there are witnesses of impurity that she committed adultery with this man while she was under her first husband—she must be removed from this one even though she has several children, for what avail is the intervention of another in the presence of witnesses of impurity.

Regarding the matter of the ketubah, the law is simple: in a case where by law we compel the husband to divorce her—she does not receive a ketubah. However, if by law we do not compel him, but rather the husband is personally concerned and divorces her—he gives her her ketubah. And so too in every case where we said that ab initio he should not marry her, but if he married her he does not divorce her, if he married her and divorced her—he also should not marry her ab initio, for what difference is there between the ab initio of the first time and the second time [it appears to me, and see Beit Shmuel at the end of subsection 4].

One who is suspected of intimacy with a maidservant and she was subsequently emancipated, or with a gentile woman and she subsequently converted – he may not marry her ab initio, and even though there is no prohibition in this even if he had relations with her, nevertheless, in this case it would strengthen the rumor. Therefore, since this is only due to the talk of the people – if he married her, he does not divorce her even if he certainly had relations with her. And if he divorced her – she is forbidden to return to him ab initio unless he has children from her, for then they permit it ab initio, as otherwise there would be a greater rumor regarding the children. And it appears that also in the law in section 9, when there are children, they permit him to marry her ab initio when he divorced her in a case where according to the law there is no prohibition post facto, in order not to strengthen the rumor regarding the children. And just as the law is regarding one suspected of intimacy with a maidservant, so too regarding a slave who has relations with a daughter of Israel and was emancipated – behold, he may not marry her, and if he married her – he does not divorce her, as I have written.

All those whom the sages said it is forbidden to marry ab initio—they shall not dwell together even in one alleyway, and all the more so in one courtyard, and all the more so they shall not be with her in one house. And it is obvious that she shall not serve him in any service, for it is forbidden for them to approach one another, for in this the rumor will be strengthened, and furthermore, the matter is close to the stumbling block of sin.

Our teacher, the Beit Yosef, wrote in section 5: In any case where they warned him and he married, it is not called bediavad and we remove her from him. Thus far his words. For so reason dictates, that anyone who violates a warning is not called bediavad. And there are those who wrote to be lenient in this. And some say that in a place where by law it is forbidden to marry her lechatchila—certainly it is not called bediavad when they warned him, but in a place where this is only because of malicious talk, such as one suspected of a maidservant—it is called bediavad [Bach and Beit Shmuel]. And in every place where they said if he married he shall not divorce, even if he betrothed and has not yet married—some say that it is permitted for him to marry her [Rivash], and so too in the laws in siman 10 the law is so.

One who divorces a woman so that his fellow may marry her, whether he takes money from his fellow for this or he wishes to fulfill his fellow's desire—it is forbidden for this fellow to marry her, as will be explained with the help of Heaven in siman 143, and it is a criminal iniquity. For regarding that which the Torah forbade one from taking back his divorcee after she has been married, one can say this reason as well: so that those driven by lust should not do so, to divorce their wives so that this one marries the wife of that one and that one marries the wife of this one, and afterwards they divorce them and take them back as before. Therefore, the verse called this "impurity" and "abomination," for you have no greater abomination than this.

Our teacher, the Beit Yosef, wrote in section 4: Some say that if witnesses came [testifying] that a married woman committed adultery, they require derishah and hakirah. Thus far his words. For according to Torah law, even in monetary matters derishah and hakirah are required, but they were abolished due to the "rectification of the world," as is written in Choshen Mishpat siman 30; and how can we forbid a woman to her husband without derishah and hakirah? And there are some of our teachers who hold that derishah and hakirah are only required during the time of the Temple when they come to execute her, but regarding the prohibition that she is forbidden to her husband, derishah and hakirah are not required, and similarly regarding gittin and kiddushin, derishah and hakirah are not required. And it seems that both are true in law, for it is certainly true that they must investigate and examine very well in a manner that there will be no absolute contradiction between them and that they all agree in their testimony that she committed adultery. And when they contradict one another, where this one says she committed adultery with Reuven and this one says she committed adultery then with Shimon—their testimony is void. However, to practice all the laws of derishah and hakirah that apply to capital cases, such as where one of the witnesses says "I do not know" regarding one of the inquiries, that their testimony should be void and the like—certainly this is impossible regarding adultery. For according to the poskim who hold that with witnesses of unsightly conduct and a rumor that does not cease we remove her from the husband—certainly in such a case it is obvious that we remove her; and even according to the poskim who disagree—it is impossible to permit her since both testify clearly that she committed adultery [and see in Noda BiYehudah siman 72]. And there is clear proof for this, for we do not have ordained judges and of necessity we are acting as their agents as is written in Choshen Mishpat siman 1, and how is it possible that we do not have the essential judges and yet regarding derishah and hakirah we would require it to be exactly like capital cases? [And this is the intention of the Rashba brought in the Beit Yosef]. And so it appears to me that if a relative or an unfit person is found among the witnesses, their testimony is void even if there are a hundred witnesses, as is written in Choshen Mishpat siman 36; nevertheless, if according to the eyes of the beit din the matter is true, it is no worse than an unsightly matter, for if not so, every cunning wicked person would act craftily to include a relative or an unfit person among the witnesses [see Tosafot Makkot 6a, s.v. "le'ashudi"].

One may not receive the testimony except in the presence of the woman and in the presence of the husband, for one does not receive testimony except in the presence of the litigant, as written in Choshen Mishpat siman 28. And likewise, if she married the adulterer and they come to forbid her to him—one must receive the testimony in his presence; but if she has not yet married him, he is not called a litigant even though she is forbidden to him, just as she is forbidden to kohanim because of her harlotry. And if they received testimony not in their presence, the beit din must endeavor to have them return and testify in their presence; and if it is impossible to testify in their presence due to some reason—after the fact, their testimony is valid testimony. And likewise, if the witnesses are afraid to testify in their presence—one receives it initially not in their presence; thus several of the great authorities agreed.