Hilchos Niddah Siman 184, Seif 11

Siman 184, Seifim 11-12:

11. If a woman has a vesses that is determined solely by days and her Onas Vesses arrives, one is not permitted to have intercourse with her until he asks her if she is pure. If a woman has no fixed vesses, then the 30^th day of her cycle is treated similarly. If a man is separated from his wife for a period of time ling enough for her to have had her period and counted the 12-day waiting period, he can engage her in intercourse without asking about her Niddah state first.

.

12. If she has a period that combines a period of time (Tur quoting Rashba) with a physical causative factor (BY quoting HaGaos Maimon Ch. 4 quoting Ramban), such as jumping and the like, since her the inception of her period requires her to actually do something, we can assume that she didn't do the action and that she hasn't had a flow. However, she is always to suspect the Ona Beinonis of 30 days even without performing the normal causative action (BY quoting Rashba and Tur Siman 189))

Seif 11 is the relevant Halacha for most women – those whose menstruation is dependant on time. We will see in Siman 189 that there are several types of menstrual cycles that the Halacha considers, even while acknowledging that some of them are more likely possibilities than others. Among the types of fixed vestos are cycles based on days – i.e., every 28^th day or every 33^rd day. For this woman the onas vesses is the appropriate day after the beginning of her previous cycle. A second type of fixed cycle is calendar based in which a woman menstruates on the same calendar day of the month. If a woman has this kind of predictable cycle, we consider the likelihood of her impurity sufficiently high that we require her husband to ask specifically if she is pure.

Although we do have rules for determining when a woman with a variable cycle needs to separate from her husband, we do not penalize her if she failed to make a bedikah at the proper time. The exception to this is the onah beinonis, the “average” cycle of 30 days that a woman with an unfixed vesses is required to observe. We can chart out the various requirements as follows:

Type of vesses	When is Onas Vesses?	Need to ask?
Vesses Kavua - days only	# of days between each cycle	Yes
Vesses Kavua - day of the month	Corresponding day in next month	Yes
Vesses sheAino Kavua	# of days between the last 2 cycles	No
	Corresponding day in next month	No
	30^th day from prior period	Yes

We will learn more about the vesses sheaino kavua in Siman 189. For the time being, it is enough to know that the strictures that apply to a woman with a fixed vesses apply at the 30^th day to the woman without a fixed vesses.

Asking.

He only needs to ask if she has a vesse kavua or the 30^th day of the aino kavua. The poskim argue about the extent of the man's questioning. According to the Pischei Tshuvah she has to be verbally asked and verbally respond.[1] Other poskim take a much more lenient view. They would permit her actions around him to be able to dictate what her answer would be - if she is, for example, sleeping near him again, that's a good sign that she is pure.[2] Most contemporary poskim hold like the Pischei Tshuvah.[3]

Long Separation

One's initial reaction to the second part of the Seif to be amazement - shouldn't we assume that she had her period and that therefore he needs to ask her if she is pure?

The answer lies in the halachic concept of s'faik s'faika - the double doubt. When he left her, she was still pure - and therefore in a status of Chezkas Taharah. He is permitted to assume that she is in the same state in which he left her - this leads to doubt #1 – whether or not she had her period. The second doubt is if she DID have her period, whether or not she went to mikvah.[4] The underlying principle of s'faik s'faika is very complicated and is not our subject. Suffice to know that the concept exists, that there are rules that govern its use and that those rules permit the construction of this s'faik s'faika.[5]

To be effective, both of the doubts must be real. For example, if the husband knows that she did not immerse, the entire s'faik s'faika would be invalid.[6]

Nevertheless, there has been a growing custom not to immerse as long as the husband is out of town. Consequently, the Aruch HaShulchan, Lechem v'simla and others discourage use of the more lenient view and require direct verbal questioning and response.[7] It would seem to me that if a woman normally waits for the day of her husband's return before immersing, one cannot rely on this leniency. A couple does need to communicate about what "normal practice" is going to be for them about this issue. Presumably, if the agreement is that she immerse regardless, one can follow the leniency of this seif. However, as I’ve noted, the prevalent custom is not to immerse.

The poskim tell us that he can take advantage of this leniency of not asking her regardless of her state - if she is awake, groggy or even asleep.[8] Nevertheless, there is a prohibition of intercourse with a sleeping woman - a woman must always consent to intercourse. The rule here of "even if she is sleeping,” relates to any prohibition that the rules of Niddah would place on him and tells us that there is no such additional prohibition.

Physical Factors
Seif 12 introduces the concept of vesses murkav - a vesses that requires a combination of events to occur. The specific one that the Mechaber is dealing with here is one in which the women must take some action to start her period. In this specific case, one can assume that she did not perform the required act and therefore is pure even though the requisite number of days has passed and one does not need to ask her if she is pure. However, she needs to observe the onah beinonis. This is somewhat surprising since normally a woman with a vesses kavua does not observe the onah beinonis. In this special combination, we apparently still require the woman to observe it, probably because there is a certain lack of concreteness regarding the causative vesses murkav. There are those who disagree[9] and one should ask a qualified Rav what to do in this somewhat unlikely situation.

There is another type of vesses murkav – one that us accompanied by physical symptoms independent of any action by the woman. These are not causal but rather indicative symptoms. For example, if a woman always has cramps 2 days before her period begins, that physical event can be seen as part of the requirement for reaching the onas vesses. Nevertheless, because it is a symptomatic rather than causal event, one may make no assumptions about its occurrence and one is required to ask the woman if she is still pure.

Type of vesses murkav	When is Onas Vesses?	Need to ask?
Causal	# of days between each cycle assuming that cause has been initiated	No
Symptomatic	# of days between each cycle assuming that the symptom has appeared.	Yes

Back to Summary
Back one page
Ahead one page
Have a question?

Last Revised December 13, 2004

[5] See BH 185:2 for a detailed discussion of resolution of the s’faik s’faika and for an explanation of why we do not clarify the doubt by asking her whether or not she became impure.