[Avodah] ashkenazi married to sefardi

[Chana Luntz via Avodah]

RET writes:

<<AFAIK this [ie RSYE's opinion that an Ashkenazia who marries a Sephardi
must continue to abstain from kitniyos] is a very minority opinion.
The more general opinion is

*Spouses with Conflicting Customs*

A question that arises frequently  these days, when marriages between
Sephardic and Ashkenazi Jews are common, is what to do when one of the
spouses in a couple is from a family that refrains from eating kitniyot on
Pesach, while the other is from a family that permits kitniyot? Addressing a
similar matter, one of the great Rishonim, Rav Shimon ben Tzemach Doran
(Tashbetz 3:179), writes that they obviously cannot eat together  at the
same table while food permissible to one is forbidden to the other.
Therefore, the wife must adopt her husband?s customs, for ?a man?s wife is
like his own body? (Brachot 24a). Should  the husband die -if the wife has a
son from him, she must keep her husband?s custom; if not, she reverts to the
custom of her own family.

Rav Moshe Feinstein (Iggrot Moshe, Orach Chaim 1:158) adds that the wife?s
status is similar to that of a person who moves to a place where the
accepted custom is different from his own. If he intends to settle there, he
must nullify his previous customs and accept the customs of his new location
(based on Shulchan Aruch, Yoreh Deah 214:2). When a woman marries, it is as
if she is moving permanently into her husband?s house, and she must
therefore adopt his customs.>>

Note that the Bnei Banim in Chelek 3 siman 29 brings an objection to this
position of RMF, based on the Rema in Even HaEzer siman 75 si'if 1. The
discussion there is regarding the situation where the man literally comes
from one country and the woman comes from another, who can force whom to
move? And while the majority of the rishonim (including the Tashbetz) hold
(absent special considerations such as Eretz Yisrael versus non Eretz
Yisrael) that the man can force the woman to move to his country, Rabbanu
Tam holds the opposite, that the woman can force the man to move.  And the
Rema holds l'halacha that we should be choshesh for the position of Rabbanu
Tam, and hence neither can force the other to move.

The Bnei Banim points out that if one cannot force the wife to physically
move to the locale of the husband, l'halacha, how can she be considered to
have moved to his place by mere dint of the marriage? After all, if she has
in fact, halachically, moved to his place by entering the chuppah, what
possible objection can there possibly be to her being made to up sticks and
actually go to his country, Rabbanu Tam or no Rabbanu Tam?  So while the
Tashbez is in fact being consistent -  being a rishon who holds that in fact
she is required to physically move to the husband's country, the Bene Banim
argues that by being choshesh for Rabbanu Tam, the Rema is clearly not
poskening like RMF and the Tashbetz.

The Bene Banim also discusses other arguments brought by the Tashbetz (such
as ishto k'gufo) - but again rejects this, given that a woman does not take
over her husband's chiyuvim and nedarim (with the possible exception of
Channukah Candles).  

>In addition ROY states a similar psak in several places. 

One can argue that ROY is in a stronger position than RMF, on the grounds
that he solely follows the Mechaber, and hence not the Rema, and might hold
that one can force a country change.

The Bnei Banim also brings, however, that while ROY comes out
straightforwardly like the Tashbetz in Yabiat Omer chelek 5 siman 37 (there
he is discussing an Ashkenazi woman who married a Sephardi man and whether
she can eat rice on Pesach - answer of course, yes), in Or Torah Iyar 4751
ROY writes (quotation taken from the Bene Banim, I don't have access to the
original): 

מנהגים שעל הבעל לנהוג בהכרח בהתאם למסורת אבותיו כגון הספרדים שקבלו הוראות
מרן ואינם רשאים להקל נגד דעתו גם ע"י התרה, על האשה אשכנזיה ללכת אחרי בעלה
ואפילו להקל תנהוג כמנהג בעלה ע' מה שכתבתי ביביע אומר )חלק ה' סימן ל"ז(.  אבל
חומרות שנהג הבעל על עצמו שאם ירצה יכול לבטלן על ידי התרה, אין שום הכרח שהאשה
תנהוג כמוהו ואין יכול לכוף עליה חומרא שאין רצונה לקבלה כשיש לה על מה לסמוך.
ולכן אם ברצונה להמשיך להשתמש בחלב תנובה יכולה לעשות כן, והבעל אם רוצה יחמיר
על עצמו. אבל לא כל מיניה לכופה שגם היא תחמיר ולא תכניס לביתם מוצרי תנובה.
והוא הדין פרות שביעית, אם היא סומכת על היתר המכירה כיון שהרבה גאוני עולם
סבירא להו להקל יכולה גם היא להמשיך להקל, וכן אין לכופה לקבל עליה חומרא שלא
להשהמש אלא במוצרים שיש עליהם השגחה מבד"ץ. ואם אין הבעל יכול להמשיך חומרותיו
כשהאשה אינה רוצה לקבל יעשה התרה על שלא אמר "בלי נדר" ויקל גם הוא, שגדול
השלום של הבית

" customs that are required of the husband of necessity because of the
tradition of his fathers like the Sephardim who accepted on themselves the
rulings of Maran [the Shulchan Aruch] and are not able to be lenient against
his opinion even by way of hatarah, it is required of an Ashkenazi woman to
go after her husband and even to conduct herself leniently like the custom
of her husband like that which I wrote in Yabiat Omer (chelek 5 siman 37).
But stringencies that the husband has placed on himself that if he wants he
is able to nullify them by way of hatarah, there is no need for the woman to
conduct herself like him and he is not able to force on her a stringency
that she does not want to accept as there is to her on whom to rely.
Therefore if she wants to continue to use Tenuva milk she is able to do
this, and the husband if he wants can be stringent upon himself.  But not
use any form of compulsion that also she be stringent that there not enter
their house the products of Tenuva. And this is the law with the fruit of
shmitta, if she relies on the heter mechira since there are many great ones
of the world who hold to leniency she is also able to continue to be
lenient, and so she is not forced to accept upon herself the stringency of
not using products which do not have on them the hashgacha of the Badatz.
And if the husband is not able to continue his stringencies when the woman
does not want to accept he should do hatarah on that which he did not say
“bli neder” and be lenient also he, as great is the peace of a house."

The Bnei Banim notes however that ROY does not bring any lamdus to defend
the distinction he makes here between longstanding community customs (such
as rice on pesach or glatt meat) and more recent customs - such as not
eating Tenuva or relying on the heter mechira.  To expand on this comment of
the Bnei Banim, one might say that if you base the reason for a woman taking
on the customs of the husband because she moves to his place, why should it
make a difference whether the customs he has established in his place are
longstanding ones, such as eating rice on pesach, or not using the products
of Tenuva?  The customs of his place are the customs of his place.  And yet
ROY is, in this, reflecting a common (if perhaps inconsistent) practice.  In
all the debate regarding husbands not using the eruv and relying on their
wives doing so, and how it shows a lack of derech eretz etc, nobody suggests
that actually it is assur for the wife to use the eruv, on the grounds that
she has moved to the husband's place, and his custom is not to do so, and so
she is stuck with the stringencies of his house.  

The Bnei Banim concludes his teshuva by stating:

ולהלכה מיהו אין לדחות מנהג העולם שאשה משתחררת ממנהגי בית אביה ונוהגת כמנהגי
בעלה אם תרצה, אך יכולה גם לסמוך על דברי הגרע"י במאמר וכן נראה לע"ד שבמה
שאינו בינו לבינה ואין בו עינוי נפש יכולה להמשיך כמנהגי בית אביה שהרי גם אם
נדרה בהם מחדש לאחר הנישואין אין הבעל מפר, ויש לה להתנות עם בעלה קודם הנשואין
שתמשיך לנהוג כמנהגה.

"And l’halacha anyway one should not push aside the custom of the world that
a woman frees herself from the customs of her father’s household and conduct
herself according to the customs of her husband if she wants, but she is
able also to rely on the words of [Rav Ovadiah Yosef] in the ma’amer and so
it seems to me that when there isn’t in it [a matter] between him and her,
and there isn’t a matter of inui nefesh she is able to continue like the
customs of the house of her father since behold also if she vowed them from
anew after the marriage the husband could not annul [such vows], and she may
make a condition with her husband before the marriage that she will continue
to conduct herself in accordance with her customs."

This point of the Bnei Banim regarding innui nefesh and matters beno uvena
is interesting.  What he is referring to is the fact that a husband can be
mafer (ie nullify) the nedarim of his wife, but only those that either
constitute inui nefesh or are considered beno u'vena (Shulchan Aruch Yoreh
Deah Diman 234 si’if 55).  And it seems to me that you can therefore deal
with the Tashbetz's point (as strongly re-iterated by ROY) regarding food
issues - ie that they cannot eat together at the same table where what is
permitted for one is prohibited for the other - with the use of this
concept, without needing to come on to place changes.  Because one of the
definitions of inui nefesh brought in the Shulchan Aruch (Shulchan Aruch
Yoreh Deah Diman 234 si’if 60-61) is if the woman forbids an item of food on
herself (although the Shulchan Aruch there in si'if 60 notes that the Rambam
considers this a matter not of inui nefesh but of beno u'vena). So that,
certainly from the perspective of a Sephardi husband, a woman who has has
the practice of not eating rice and kitniyot on Pesach is engaging in inui
nefesh - and if you follow the Rav Poelim I brought in an earlier post, that
if one is forbidden to eat something, one is forbidden to cook it on yom tov
for others who may eat it, then the woman could not cook rice or kitniyot
for the husband either - making the matter clearly one beno u'vena.  So it
seems like the whole question of differences in food do not need discussions
of place, they can more readily be handled within the context of the
existing halachic framework surrounding marriage, and what is and is not
appropriate to be waived in the context of a healthy marriage.

That set me thinking about the fact that actually we are talking about a
whole range of different forms of minhagim - and it seems to me that as a
first stab, we are dealing here with four different categories:

a) minhagim that really have no impact on the husband - such as whether she
benches and davens minhag Ashkenaz or minhag Edot Hamizrach (but will have a
major impact on her should she be required to change, both in terms of the
huge learning curve, and also in terms of the emotional impact, eg of the
kol nidrei tunes).  One might perhaps say that if she davens a different
nusach, she will want to go to shul to a different place - but she is in a
different place from the husband anyway, by virtue of the mechitza, and of
course many women do not have the custom to go at all, so real impact would
seem to be minimal.  That seems to be the underlying message of the Bene
Banim.

b) minhagim that involve inui nefesh of the woman (which the halacha defines
as having an impact on the husband, and which includes her having
prohibitions on food) and those beno u'vena.  We already have a halachic
framework to determine these - the relevant sections of Yoreh Deah siman
234.  For example, it doesn't seem to me to be a stretch to say that if he
has the minhag of putting food with a majority of solid on the blech on
shabbas, and she has a minhag not to, then her following that minhag will
impact beno u'vena in terms of what gets provided at the shabbas table, and
therefore would fall within the category of minhagim that ought to change in
the interests of a unified household.

c) minhagim that impact the husband financially.  The interesting thing is
that these *are* dealt with in the gemora and the halacha based on the
principle "olah imo v'ana yoredes imo" - she goes up with him but does not
go down with him.  The case discussed on Kesubos 48a is regarding what it is
necessary for him to hire for her funeral (in the way of flute players and
wailers) where the custom between her family and his family is different.
And while it might have been the case that it was different because they
were from a different socio-economic class, it may also be because she came
from a different place where the custom was to spend more on funerals and
even so (once you accept that the same rule applies in death as it does in
life) he is required to fund the difference - there is no assumption that
because she has moved to his place, she is only entitled to the funeral
according to the custom of his place.  It would therefore seem that the
straightforward pshat of this gemora is against the Tashbetz.  Similarly the
Shulchan Aruch rules in Even HaEzer siman 80 si'if 10 that the various forms
of work that are required of a woman for her husband are only required if it
is the derech of both her family and his family for a woman to do this - ie
it is the intersection of the two sets of minhagim that make the requirement
binding.

d) minhagim of the husband that cause her tzar: this is in many ways the
flip side of b), in that in b) we are talking about a situation where what
she has been accustomed to doing all her life is, from the perspective of
the husband, a form of inui nefesh, while here, the customs of the husband
are what to her might well seem inui nefesh. This could also perhaps be said
to be dealt with by the gemora.  The gemora in Kesubos 61a discusses the
situation where there is a dispute between him and her regarding whether she
should nurse their baby in situations where it is the custom of her family
but not his or vice versa.  The question has a financial aspect, if she does
not, then the husband will be put to the expense of hiring a wet nurse, and
also, it would appear, a status/beauty aspect (the husband may not want her
to, either because only lower class women do this, or because it might make
her less beautiful in his eyes).  In terms of the financial and status
aspect, the gemora again brings the position of olah imo v'ana yoredes imo
as per c), but there are also other aspects.  For example, in the case where
she wants to nurse, and the husband does not want her to, the gemora assumes
that it is straightforward that, if she wishes to nurse, we listen to her,
on the grounds that "tzara dedei hu" - it is her pain.  Now Rashi
understands this as the physical pain of having milk and having no-one feed
- but it could also be understood to be psychological. However, it is hard
to know how far to extend this case, nursing might well be considered sui
generis, because (a) it is something very specific to a woman that a man
will never do (regardless of what the women in his family did) and (b) there
are very specific, unusual, physical and/or psychological factors which are
not necessarily duplicated elsewhere.  Refraining from specific foods
(despite it being considered inui nefesh) would seem to be a far less
significant matter.

What might perhaps be of more general application is the discussion that
immediately follows the nursing question - in which the gemora attempts to
find a Torah source for the idea of olah imo v'ana yoredes imo.  Rav Huna
learns it out of  "He beulas ba'al" (Breishis 20:3) [Reference to Sarah
Imanu vis a vis Avimelech] and therefore "beilaso shel baal v'lo yoredaso" -
she goes up with the husband and not down with him while Rabbi Eliezer
learns it out from "ki who eim kol chai" [Breishis 3:20]  and therefore
"l'chaim nitna vlo l'tzar nitna" - she was given for life and not for tzar.
Now the Pnei Yehoshua and the Mahrasha attempt to learn different nafka
minas from the bringing of these two different sources - but it seems to me
that a straightforward nafka mina is that the first source appears to
understand the question primarily as being one of financial or perhaps
spiritual improvement (however one understands "going up" rather than "going
down").  While the second source seems rather to focus on the idea that
marriage is supposed to bring with it life rather than pain. So under the
first source one might understand, if one understands prishus from
particular foods or activities as a form of greater spirituality, then a
woman ought to follow her husband in that, even if it is considered innui
nefesh, while following the second source, the key would seem more to be a
question of tzar, and inui nefesh must surely be considered at least some
aspect of tzar.  On some level that does seem to be what is driving ROY in
his discussion of customs such as not using tenuva milk or not relying on
the heter mechira - both cases deal with the situation where the man is the
stringent one, and her custom is towards leniency.  But where this question
would seem to really bite, is, for example, in the case of a Sephardi woman
contemplating marrying an Ashkenazi man - where she has grown up eating and
cooking rice and kitniyot on Pesach.  I know a number of little Sephardi
girls who have told me that they would not contemplate marrying an Ashkenazi
man because of this.  Now maybe they will grow out of it - but it does seem
to me to a really bad reason to be rejecting a potential suitor - and yet
the sense of tzar is there, that is what they are saying, I don't want the
tzar of making Pesach, which for many women is tzar enough already, totally
different from the way I grew up and have been taught - especially when it
comes with countless greater stringencies. And even if she does ignore this
in practice and accepts such a marriage, one can easily see a level of
resentment bubbling to the surface at what can be in any event a very
stressful time ("it is your fault that it is so darn difficult so the least
you can do is be more helpful").  And if one could in fact understand a
fundamental halachic principle to be taken into consideration as that of
l'chaim nitna vlo l'tzar nitna - you might end up with something in keeping
with the shalom bayis needs of klal yisrael.

>Eli Turkel

Regards

Chana