A marriage of a minor by a mother or a brother is only on a rabbinic level. When she becomes of age does her marriage automatically rise to a Torah level or does some significant act needs to be performed? Rav holds that the couple must engage in intercourse before the marriage is considered on a Torah level. TB Yevamot analyzes whether this assumption about Rav is true. The Gemara brings a case study.
“The Gemara asks: And did Rav actually say that when he engaged in sexual intercourse with her, yes, the original marriage is valid, and if he did not have intercourse with her, no, it is not valid? Wasn’t there an incident in the city of Neresh where a woman was betrothed when she was a minor, and she reached majority, and the husband seated her in a bridal chair under the marriage canopy and had not yet had intercourse with her, and another man came and seized her from him and married her? And Rav Bruna and Rav Ḥananel, the students of Rav, were there and they did not require her to receive a bill of divorce from the latter husband. Presumably, they regarded her as fully married to the first husband, so the marriage to the second marriage never took effect, despite the fact that the first marriage had not yet been consummated.” (Sefaria.org translation)
As the case study stands right now, Rav
seems to contradict himself. Concerning the married minor who grows up, he
states that the couple needs to engage in sexual intercourse for the marriage to
be recognized on a Torah level. The case study of Neresh, seemingly teaches
that one does not need intercourse for the marriage to be recognized as valid and
a Torah level. Does Rav require sexual intercourse to validate the marriage and
a Torah level are not?
The Gemara
provides two different solutions to resolve this apparent contradiction. “Rav Pappa said: There is a difference, because in
Neresh their practice is to first marry a woman and have intercourse
with her, and afterward they seat her in the bridal chair. In this
incident, the husband had already had intercourse with her once she was an
adult, and that is why Rav’s students did not require a bill of divorce from
the second man. Rav Ashi says: There was a different reason, even if the
practice was not as Rav Pappa describes. This bride snatcher acted
improperly. Consequently, they treated him improperly by annulling the
legal validity of his actions, and the Sages abrogated his betrothal.
“Ravina said to Rav Ashi: This works out well if the second man betrothed
her with money, as then the Sages could declare that money to be ownerless
property and void the betrothal. If he betrothed her by means of
intercourse, what is the halakha? How can the Sages dissolve the
betrothal when the sexual act took place? The Gemara answers: The Sages
rendered his sexual act a licentious sexual act, which does not create a
bond of betrothal. With regard to the dispute in the mishna” (Sefaria.org translation)
Rav Ashi’s interpretation highlights the power of
the court. The court has the power to annul a marriage since the couple gets
married “accordance with the law Moses and the people Israel-על דעת משה וישראל” Even though the first “marriage” was never consummated and never
became valid making the second marriage the only valid one, the court had the
power to annul this kosher second marriage because the man acted
inappropriately.
I feel that Jewish courts should
exercise this power more frequent when a recalcitrant husband absolutely
refuses to give his wife a bill of divorce, a get (גט). This woman is an agunah,
doomed according to Jewish law to remarry. When all methods of persuasion fails
or when the husband refuses to give a bill of divorce until he gains some
economic advantage or complete parental control over the children, this demand is
outright blackmail. I think he has acted no less improperly than the case of
Neresh according to Rav Ashi’s opinion.
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