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I read recently of a case where a Rabbi (I assume as head of a Beit Din) instructed a Jewish burial society not to bury the body of a woman who is the mother of a man who refuses to give his wife a get (bill of divorce). This was done in order to apply pressure on the man to give his wife a get.

There is a halachic obligation to bury the dead according to most authorities that means as soon as possible, See Nitei Gavriel 75:24.

I would like to know what the halachic argument is for not burying someone in order to force another person to give a get.

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    I am totally unsurprised by a ruling that takes the welfare of a living woman more to heart than the welfare of a deceased one. – Micha Berger Aug 20 at 14:24
  • BTW, his son wouldn't get a beris either. See the same Rama cited by Oliver. – Micha Berger Aug 20 at 14:25
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In this particular case R. Lau was upholding the UOR’s ruling. The latter’s ruling (viewable here) was based on Rema (EH 154:21), citing earlier authorities, who permits to withhold any aid to a “sarvan” (one refusing to grant a get) including circumcising or burying his children. Upon this precedent the UOR ruled that preventing the mother’s burial is likewise a permissible way of pressuring the sarvan, especially in this case where the mother (the deceased) encouraged her son in his behavior.

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    To be clear, they are preventing anyone from assisting in her burial, not preventing her burial. The get-refuser can (and is probably obligated to) take the body, buy a cemetery, and bury her himself. – Double AA Aug 20 at 14:06
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    @DoubleAA Right, same as circumcising his sons; he can (and is probably obligated to) circumcise them by himself. – Oliver Aug 20 at 14:39
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As Oliver stated the specific ruling is based on the Rema, but the reason the Rema (and others) allowed refusing burial to the family of a get-refuser is not mentioned so I'm adding it here.

The origin of the idea of refusing burial to the family of a get-refuser or other person on violation of a beit din is Paltoi Gaon (841-858). He includes several penalties, including not counting the person in a minyan, pulling their children from school, banning a person's spouse from synagogue, declaring their wine and bread to be like the wine and bread of non-Jews, removing a person's tzitzit and mezuzot, not circumcising sons, and not eating or drinking with him. (תשובות הגאונים - מוסאפיה סימן י)

Paltoi Gaon's position is supported by many other rishonim including the Rif, Nemukei Yosef, Rashba, Rb. Yerusham, Rivash, Binyamin Ze'ev, and the Beit Yosef.

According to the Binyamin Ze'ev, who is the one cited by the Rema, the reason the beit din can do this is as follows. The gemarah gives the courts permission to uproot a mitzvah if it is for the sake of the Torah. (Yevamot 90b). Additionally, while one cannot take a shevua that only prevents a mitzvah, one can take a shevua that prevents both mitzvah and non-mitzvah activities. For example, if one makes a shevuah not to eat matza for a full year, they are forbidden to eat matzah on the first night of Pesach even though these is a positive Torah commandment to do so. Similarly, a Jew can take a shevua not to help a person in any way because that will include non-mitzvah things even though it may include not performing a positive mitzvah (like burial or circumcision). (Binyamin Ze'ev 289 and Yabia Omer EH 8:25).

  • To be clear, the Geonim who discussed these sanctions stated them with regards to one who is excommunicated (“herem”) after disobeying a Beit Din’s ruling (previously under ban “menudah”) and not specifically in the context of a recalcitrant husband (get-refuser). – Oliver Sep 11 at 20:22
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