38 Mark Washofsky
(BT Ketubot 64a). All of this, Rivash reminds us, is said concerning the barren wife(‘akara), whose barrenness might be temporary, the result of some illness; how much more is this the case, then, with an elderly woman who will never be able to bear children. Moreover, the Talmud cautions that a man should never stop engaging in this mitzvah but should always strive to marry a woman capable of bearing children(BT Yevamot 62b). As Rambam puts it(Yad. Ishut 15:16):“Although a man may have already fulfilled his obligation to procreate, it is a rabbinic commandment that he not refrain from attempting to father children so long as he is physically able, for when a person adds one more life to the Jewish people, it is as though he has built an entire world.”
Rivash presents this material in a magisterial way, a narrative unbroken by controversy, disagreement, or minority opinions, one that sets forth the unchallenged, settled law. The Talmudic sources, confirmed by the rulings of Maimonides , the leading posek of Spain and North Africa , make clear the existence of a“halakhic consensus” on the impropriety of this proposed marriage and on the duty of the beit din, as the representative of Torah law, to do all in its power to frustrate this couple’s intention to wed. Yet now Rivash tells us that the law, however clear and undisputed it may be, conflicts sharply with the general practice of the courts.
The above is the formal law(shurat hadin). Yet what can I do? I have never seen nor heard that a beit din in our time has actually coerced a man to divorce his wife when she has lived with him for ten years without giving birth or if she is too old to bear children. This is true even in those cases where he has not yet fulfilled his mitzvah of procreation, where the law(din) would permit the court to compel a divorce.
This situation, too, is no coincidence. It seems that the rabbinical courts have intentionally adopted a“hands-off” policy with respect to a variety of issues in marital law.
Likewise, I have never seen a beit din protest when a man seeks to marry a minor girl not yet capable of bearing children... Even though a father is prohibited from giving his daughter in marriage until she is old enough to say that‘I wish to marry so-and-so’(BT Kidushin 41a), I have never seen anyone protest against this practice.(Nor do the courts interfere) in cases where the daughter of a kohen or of a talmid chakham(scholar) is to marry an ignorant man.!?®