42 Mark Washofsky
in this matter. Until now, the question had been discussed solely from Shmuel’s perspective, and the only relevant issue had been whether he is allowed under the law to marry a woman incapable of bearing children. Rivash asks his readers to think about the question from the woman's point of view. When we do, we realize that this is not simply a question concerning Shmuel. Both parties, she no less than he, wish to marry, and when we consider her desires as well as his, we are more inclined to respond positively to their(and not simply“his”) intention to marry.
For our purposes, however, the most interesting feature of this passage is the phrase“a staff in her hand and a hoe for burial,” taken from BT Yevamot 65b. The sugya there deals with the mitzvah of procreation, in particular with the rule that this obligation is incumbent upon males and not females.” As we have seen, it is because of this obligation that the halakhah can require a man to marry a woman capable of bearing children and to divorce a wife who is barren. So long as he has not fulfilled his duty under the mitzoah of procreation, he is entitled and even obliged to divorce his wife if she cannot give him children. It follows that the woman, who has no such obligation, enjoys no such entitlement: she cannot sue for divorce if her husband is sterile, for his condition does not frustrate her fulfillment of a mitzvah. As if to support this deduction, the sugya reports several cases involving wives who seek divorce from husbands incapable of fathering children. In each case, the rabbinical authority rejects her request on the grounds that she is not obligated by the Torah to bring children into the world and that she therefore lacks a valid claim for divorce. Yet in each case, the woman argues that her desire for children, even though it does not come to fulfill a mitzvah, ought nonetheless to entitle her to the freedom to find another husband. In each instance, this argument persuades the judge to grant her request.
One of these cases is reported as follows:
A woman came before the court of Rav Nachman(seeking a divorce).
He said to her:“You are not obligated(under the mitzvah of procreation).” 1%’
She said to him:“Does this woman not require a staff in her hand and a hoe for burial?”