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One who commits incest is punished with Kares (spiritual separation from the divine source), and any product of incest has the status of a Mamzer.

One who has relations with a Niddah is also punished with Kares, yet the product of such a union does not acquire the status of a Mamzer.

Shouldn't the product of both unions have the same status?

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The form of this question is typical of questions and suggestions in the Talmud. I wonder if it's ever actually asked as such there. –  Isaac Moses Jun 8 '12 at 18:12
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I think the answer is that usually we have chayavei kares -> ein kidushin tofsin -> mamzerus. But by a nidda, although it is chayav kares, it is still kidushin tofsin. –  jake Jun 8 '12 at 18:18
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2 Answers

up vote 16 down vote accepted

The Gemara says in Kiddushin that it's derived from a verse "ותהי נדתה עליו" - that even when one is a Nidda, there still is "Haviya" (marriage). Therefore, Kiddushin by a nidda works.

If so, there are no issues of Mamzeirus.

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this drasha is on yevamos 49a/b –  moses Jun 10 '12 at 16:47
    
Whence the logical jump from Chalot Kiddushin to lack of Mamzerut? –  Double AA Apr 30 '13 at 21:00
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I'll have to look up the source after Shabbos, but my understanding is that the offspring of two people who could never have a legitimate relationship will always be a mamzer. Therefore, the offspring of incest and the offspring of a Kohen and a divorcee are mamzerim.

In your case, the offspring is of a couple who could have a legitimate relationship; however, the conception occurred at an inapropriate time.

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What about the offspring of a man and his wife's sister? They can have a permissible relationship after his wife dies. Note also that the product of a kohen and a divorcee is not a mamzer. –  msh210 Aug 12 '12 at 4:22
    
Also a man and his brother's wife who might become permitted to him eventually through Yibbum. –  Double AA Aug 16 '12 at 15:47
    
I think both comments miss the obvious example: a married woman. Once she stops being married, she could be with this other fellow. –  Ze'ev Felsen Sep 10 '12 at 18:31
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It's definitely not true that the offspring of a Kohen and divorcee are mamzerim. There's no chaiv kares in the relationship. The marriage is a real marriage, but they are required to get divorced. This is a mishnah in Kesuvos. –  Craig Feinstein Sep 27 '12 at 13:49
    
@Ze'evFelsen Actually, if someone had a relationship with a married woman they are forever prohibited to each other, even if she divorced or her husband died. –  Ariel Dec 30 '12 at 9:40
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