Siman 185 Seif 3
- If she has told her husband that she is impure and afterwards says that she is pure, her claim of purity is not believed. if she makes the assertion after a very brief period of time. If she provides an explanation for her claim of being impure, such as that she had a headache or some other similar type of complaint, she is believed. In any event, anyone who chooses to be strict on himself and to not believe her is considered pious. The basic law is that she is believed even if she never makes an oral claim of purity and does some action such as lying in bed next to him and he recognizes that her earlier claim of impurity she made because of an argument with him and similar cases. However, if he says her wearing her unique clothing for her menstruation, we do not believe her subsequent assertion of purity, even if she has an explanation. If she says "such and such rabbi said this stain is pure" and the Rabbi claims that she is lying, the rabbi is believed and she is impure
Seif 3 deals with yet another case of conflicting claims – one in which the woman asserts to her husband that is impure and subsequently asserted that she is, indeed, pure. In spite of the Rama, if she came and lay next to him, he still needs to get her to make a verbal statement.[1] Others will permit a retraction only if her initial statement had been something short of “I am impure”, such as “I have abdominal pain” or “I am afraid my vesses is changing”.[2]
If a woman makes a verbal claim of impurity at the time of her vesses kavua, she is not believed when she withdraws that statement and has an explanation.[3]
According to the Sha’arei Dora, if the woman makes a claim that it is now onas vesses or, for those who hold it, Onas Ohe Zarua she is believed for 2 reasons - first, she is impure because of a concept called shavya nafsha chaticha d'issura - that she has made herself forbidden. This concept only applies to d'oraisa laws and not to rabbinic laws - and the Onas Ohr Zarua is clearly rabbinic. Second, even if the shavya nafsha principle applies, the purpose of separating at that time is to prevent intercourse that might be forbidden because of the woman's menstruation. The prohibition of intercourse during the onah is to guard against possible illicit intercourse and is not a prohibition against all intercourse during that period.[4]
There are objections to both of these reasons. First, there are a number of circumstances in which we actually do see the concept of shavya nafsha applied in rabbinic situations. Second, according to some poskim, separation during the onas vesses is in fact a Torah based law.[5] It seems to me that these two challenges generate different halachic outcomes – if shavya nafsha applies in rabbinic situations, then any assertion that she makes regarding her onah cannot be retracted. If, however, we only apply the concept to Torah laws, since separation during onas vesses for a vesses she’aino kavua and for the onas Ohr Zarua are both clearly rabbinic, she would be able to retract her assertion about either of these. Lastly, the idea that the onah is designed to prevent possible illicit intercourse, she did make a declaration that we cannot simply push aside. Consequently, if the woman made her declaration earnestly, she must separate, while if she said it in play or in jest we would permit retraction. Finally, if she asserts that she made a mistake in her calculation, she is believed as long as there is some supporting evidence.[6] Others find this view perplexing and dismiss it entirely.[7]
Explanations are effective to counteract an assertion made to her husband (but not if the assertion was made in public, see Seif 2). However, if she has put on her Niddah clothes, explanations will not be effective. The Halacha considers a deliberate action to have greater probative value than an oral statement.[8] It seems to me that this rule applies even as between the woman and her husband, as well as in the case of Seif 2.
If the woman makes an assertion of impurity and knows that it is untrue and is in a situation where she cannot validly retract her statements, since the woman is prohibited because of her own representation and not because of any underlying impurity, there is a question about whether the woman needs to make a blessing when she goes to immerse. There are views in both directions and one should seek rabbinic guidance in such a situation. That said, clearly the likelihood of the woman not becoming a niddah at some point during the 12 day wait to immerse, this issue is probably not one that arises in practice.
The final significant issue is the discussion of a conflict between the woman and a posek as to what the posek said.
We believe only the posek himself and not someone who claims to have been present at the time. The reason for this is a critical concept in Jewish trial law - bkol makom she heemin hatorah b'aid echad, haray kaan sh'naim - when the law accepts the testimony of a single witness, it is considered as though there were 2 witnesses. Therefore, the woman, who is believed at first, has a status of 2 people and the witness who comes later is a single witness and is therefore not believed.[9] However, when the posek contradicts her assertion, he is believed, since her testimony as a single witness is dependant on the posek acting in the role of a silent second witness.[10] There is a discussion in the poskim about whether a woman who lies in this way about her niddah status forfeits her kesuvah.
However, if the woman says she appeared before the posek and he says that she was never there, then she is believed. The reasons for this again have to do with judicial law and are not relevant here.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|