“When is a Jew not a Jew? When he is in Israel, if he belongs to a sect of which the Chief Rabbi disapproves. And being considered a non-Jew in Israel can be awkward, especially if one falls in love.”
(Time magazine, July 28, 1961).
With this opening paragraph, unfortunately remarkable for its almost totality of error, Time magazine plunged into the story of conflict over marriage between the Bnei Israel Jews of India and other Israeli Jews – a struggle which carries within it ominous portents for religious Jewry.
For while religious Jewry in the past few months was engrossed in the sound-and-fury-signifying-nothing of the elections in Israel, or in the relatively unimportant Shtarkes case, a cloud far larger, far blacker, far more important for the future of religion in the Jewish State appeared on the horizon. It is a cloud which threatens the status quo in the religious field, a storm which bids fair to tear the monopoly on marriage and divorce from the hands of the Rabbinate; a wave that could split Israel into separate Orthodox and non-Orthodox communities with marriage between them forbidden. It is the case of the Bnei Israel, the 7,000 Indian Jews in Israel.
Vital Information
It is vital that the Orthodox Jew know the background and the facts of the whole problem. Only an informed Orthodox Jew will have the knowledge with which to present the Halachic view of this affair, and the inner assurance that we have behaved as befits true Torah Jewry.
For some years now, ever since Mizrachi-Hapoel Hamizrachi backed Ben-Gurion on a National Service for Women bill, thus gaining in return Mapai backing of the Marriage and Divorce Law, the Chief Rabbinate of Israel has had sole jurisdiction over marriage and divorce in Israel. It was not without cause that Chief Rabbi Herzog figuratively leaped for joy, as in effect, illegitimacy and illegal marriage disappeared from Israel, thus assuring the unity and complete “integration” of the nation.
Over the years, despite grumblings and complaints on the part of Jews wishing to marry non-Jews, Kohanim (priests) wishing to marry divorcees, and others desiring marriage forbidden by the Torah, on the whole, the Rabbinate has maintained a blessed Halachic grip on the field most basic to the unity and continuity of the Jewish people. In the last six months, however, events occurred which threaten to change this completely.
Marriage Application
Last summer, Indian-born Avshalom Dhatavkar and Shulamith Shula Elmalen applied for a marriage license in Israel. It soon became obvious that it would be refused since Dhatavkar was of the Bnei Israel. Protests throughout Israel were immediately heard. Premier Ben-Gurion gave his “psak din” (ruling) before a mass audience: “The Jews of Bnei Israel are like all Jews and there is no basis for disqualifying them.” Jewish Agency Executive Chairman Moshe Sharett declared: “A Jew is first of all someone who is conscious of being a Jew.” Left-wing papers called for an end to the Rabbinical monopoly on marriage and for the institution of civil marriage; the call was echoed by many others not from the Left. Dhatavkar said bitterly: “I was good enough to fight as a parachutist in the army.” Reportedly refusing to answer his last military service call, he stated: “If I am not a Jew, you have no right to call me to serve.”
The storm broke about the heads of the Chief Rabbinate, the religious parties, and Orthodoxy in general. What is the problem? What is the reason for the refusal to treat Dhatavkar as any other Jew? What is the truth?
The Issue
To begin with, the basic problem here is not that the Rabbinate considers the Bnei Israel not to be Jews. Because of this, there is no need here to take up the “halachic” rulings and definitions of Mr. Ben-Gurion and Mr. Sharett as to just what constitutes a Jew. No attempt was made to imply that the Bnei Israel sect is not Jewish. Assuming that they are, there is quite another factor here which has relevance solely to marriage.
A clear and explicit ruling in the Torah states: “One of illegitimate lineage shall not enter the Congregation of the L-rd” (i.e., shall not marry with other Jews).
Let it be clearly understood that the concept “illegitimate” in Jewish Law has no similarity to that of other peoples. It refers only to those born from either an incestuous or adulterous union. Included in such definition is one born from a mother who, though married to one man, has relations with another resulting in the birth of a child. This is true even in the case of a woman who, after being married, receives an IMPROPER DIVORCE, and thereupon marries another man, with a child resulting from this adulterous union.
Different Divorce
It is this, and this alone, which is the crux of the problem. The Bnei Israel, claiming residence in India for 2,000 years, were cut off from the mainstream of Jewish halacha and Rabbinical rulings. Their rules for divorce are patently different in many vital respects. Their divorces are invalid in the eyes of Halacha. Any child born to a woman receiving such a divorce and then remarrying is considered in the eyes of halacha – not the Chief Rabbinate – as illegitimate and barred from marriage by the Torah. Such a child is still considered a Jew. Time magazine, David Ben-Gurion, and Moshe Sharett for various reasons have misstated the issue here. The question is: According to halacha, through the decisions of those competent to judge, i.e., the Rabbinate, can a Jew of Bnei Israel marry another Jew?
While a negative ruling may bring down the wrath of irreligious Israel on our heads; while we understand that the vital statute, the Marriage and Divorce Law barring civil marriage, may be in jeopardy, nevertheless, the Rabbinate cannot permit what may be forbidden. The glory of Torah, the sanctifying of the Name of Heaven, takes precedence over all else.
Various Rulings
Certainly the Rabbinate would dearly love to find some halachic heter (permissive ruling). Perhaps they yet will. For the final halachic ruling is far from certain yet. As in the case of the Karaite Jews (over whom a somewhat similar struggle is being carried on), there are differing opinions. Thus, the Rama, Even Haezer 4:37, forbids Karaite marriage since they possess the proper forms of marriage but the improper form of divorce (Turei Zahav). However, there are poskim who contend that, after all, the average Karaite is only a safek (possible) illegitimate, since we do not know if there was a divorce in his background. Furthermore, most Karaites do not divorce, leaving us with a rov (majority) of non-divorcing Karaites. Using this reasoning, the Nodah B’Yehudah ruled that if the Karaite was born away from makom kvi’us (permanent place of settlement) of the Karaites, such a marriage would not be challenged. If, however, the Karaite was born there, “I am neither of those that permit nor of those that forbid, SINCE CERTAIN OF THE ANCIENTS HAVE PERMITTED ACCEPTANCE EVEN IN THE PLACE OF PERMANENT SETTLEMENT.” (Mahadura Kama, Even Haezer, 5).
In this connection, it should be noted that in the lands of the Orient, the tendency was to permit Karaite marriage. Thus, in Egypt, Rabbi Aharon Mendel HaCohen from Cracow, rabbi of the Ashkenazic community, did permit such marriages. The late Rabbi Yaakov Moshe Toledano, who had experience in such matters in Alexandria, also leaned towards leniency here.
So there are possibilities for permission or prohibition. The main point, however, is not what the Rabbinate will eventually rule. The crux of the matter is that whatever they rule, that shall be the ruling. They alone are the authoritative seats of judgment. All the cabinets, and Knessiot (parliaments), and leaders cannot affect the Halacha. Let us remember it, declare it, and voice our fervent support of our leaders – the Rabbinate.
3 Cheshvan 5722 – October 13, 1961