– Author: Rav Otniel Fendel

The wedding night is a very special time for a young couple, and often involves a mixture of anxiety and excitement. After months of being engaged the couple are finally permitted to be alone together. Unfortunately, as we shall see, some halachic complications sometimes arise that may prohibit the newlywed couple from being alone. We shall discuss when and why this occurs and how it can be avoided.

The Gemara[1] derives from a verse in Devarim[2] prohibiting one from being drawn astray after avoda zara that the prohibition of yichud (seclusion) is prohibited with someone who is an erva (a forbidden relationship).[3] From the fact that the Torah provides a special dispensation of yichud for a mother and son (as well as a father and daughter), we derive that there is a general prohibition of yichud with other arayot as well, such as with an eishet ish or a woman who is a nidda.[4]

Although there is no prohibition for a husband and wife to be alone together even while the wife is a nidda,[5] there is one exception to this rule. The Gemara in Masechet Ketubot[6] explains that in the event that a chatan and kalla wed but she became a nidda before they had relations, the prohibition of yichud between husband and wife does apply.[7] This is codified by the Rambam[8] and is brought as halacha by the Shulchan Aruch.[9]

The Terumat HaDeshen[10] discusses a slightly nuanced case where the couple wed but did not have relations for a few days. In the interim, the bride became a nidda. The Terumat HaDeshen debates whether this is analogous to the case brought in the Gemara Ketubot or not. The Terumat HaDeshen explains that the reason that a chatan and kalla are prohibited from yichud together if she becomes a nidda before they had relations is due to the concern that he would not be able to control his impulses. However, in this case, where the chatan has demonstrated that he can control his urges (by the fact that he did not have relations with her for a few days after the marriage even though he was permitted), perhaps there would be no prohibition of yichud.

The Terumat HaDeshen brings a proof for this argument from a case regarding a shor hamu’ad – a goring ox. The Gemara[11] states that a shor mu’ad (an ox that has gored three times and is therefore assumed to be an ox that will continue to gore) who comes into contact with animals three times and does not gore them indicates that the urge to gore has come under control, and the ox returns to it its status as a shor tam (an ox that does not gore). The Terumat HaDeshen claims that the same is true in our case. It is true that we usually assume that a person who has not yet had relations with a woman will have a powerful urge to do so and may even violate the serious transgression of relations with a nidda; hence, there is a prohibition of yichud until they have had relations. But in our case, where we see that the person has overcome his urge, he is given a status as if he has already had relations with his bride. Thus, he is permitted to be with her in yichud even though they have not had relations. The Terumat HaDeshen does conclude though that one who wants to be stringent will be blessed.

The Maharshal[12] also addresses this question but argues with the Terumat HaDeshen that the case of the goring ox is incomparable to the case at hand. He argues that one cannot compare an animal to a person, as here the Gemara explicitly states that only if he has pat b’salo, “bread in his basket,” i.e., he has already had relations, do we assume that he will overcome his urges and permit him to seclude with her. The Taz clarifies this argument further. He explains that in the case of the shor hamu’ad, the natural state of an ox is that it does not simply gore. Only after it has gored three times do we assume that there is something wrong and it is considered a shor mu’ad. If it sees other animals three times and no longer gores, we can assume that it has returned to its natural composure.

On the other hand, a man is assumed to have a natural urge to be with a woman with whom he has not yet consummated the wedding. The Gemara uses the logic of pat b’salo – he has bread in his basket, meaning that since he has the option (or has taken advantage of the option) to be with his wife, we don’t assume that he will sin and be with her when she is a nidda. However, when he has not yet consummated the marriage, we still assume that his natural inclination is to desire to be with her and we are concerned that he will transgress even though she is a nidda.

Rav Yonatan Eibeshutz[13] proves that the Rambam disagrees with the Terumat HaDeshen. The Rambam[14] rules that a chuppat nidda is invalid, and a chuppa according to the Rambam is defined as seclusion of the chattan and kallah in a manner where they are potentially capable of consummating the marriage. Hence, when the Gemara in Ketubot states that the kalla became a nidda following the wedding, it must refer to a scenario where they had the opportunity to consummate the wedding. Nevertheless, the Gemara rules that there is a prohibition of yichud.

^Rulings of the Acharonim

The Shulchan Aruch[15] rules that if a woman became a nidda before the couple had relations, they are not permitted to be alone. The Shulchan Aruch does not distinguish between whether the couple had the possibility of having relations or not. The Rema,[16] on the other hand, brings the opinion of the Terumat HaDeshen that if she was pure when they wed but they did not have relations, and she thereafter became a nidda, they are permitted to be alone together. He concludes though that one who wants to be stringent will be blessed.

The Shulchan Aruch thus seems to rule in a similar manner to the Maharshal, and this appears to be the opinion of the Rambam as well (as the Pleiti argues), whereas the Rema clearly rules like the Terumat HaDeshen.

The Shach[17] writes that there was a minhag not to consummate the marriage on the first night, but to wait two or three days. He emphatically rules that this custom must be abolished and there are a number of halachic problems with this “minhag shtut.” However, in the event that the couple did wait a day or two and in the interim the bride became a nidda, the Shach writes that here the prohibition of yichud would definitely apply (even according to the Rema). Since the chatan did not have relations due to the minhag, there is no proof that his impulse has been calmed, and we must be concerned that he will wish to have relations even after his bride becomes a nidda.

Rav Eibshitz[18] argues though that the claim of the Shach makes no sense. If the chatan is able to control his urge due to a minhag shtut, certainly he will be able to control his urge to prevent being liable to the serious punishment of kareit incurred for having relations with a woman who is a nidda. He concludes that this must have been written in error by a student.

^Is the Prohibition of Yichud With One’s Wife De’oraita or Derabanan?

As we have seen, there is generally no prohibition for a husband and wife to be alone even if she is a nidda, but there is one exception to the rule – when they have not yet consummated the marriage (or had the chance to consummate the marriage according to the Terumat HaDeshen). In such a case, the Gemara clearly states that the prohibition of yichud applies. Is this a rabbinic decree or a Torah prohibition?

In Shiurei Rav Dovid,[19] Rav Dovid Povarsky claims that according to the Rambam the prohibition is only rabbinic in nature. He proves this from the fact that the Rambam codifies the halacha that yichud applies if the bride became a nidda before having relations together with the halacha (also mentioned in the Gemara Ketubot) that she must sleep among the women while he sleeps among the men. Rav Dovid argues that the second halacha is clearly miderabanan, and by juxtaposing the two, the Rambam indicates that the first halacha is also of a derabanan nature. The Divrei Yechezkel,[20] on the other hand, posits that the prohibition of yichud in this case is de’oraita. He also proves this from the words of the Rambam. When the Rambam records the prohibition of yichud,[21] he mentions the general prohibition of yichud with arayot together with the halacha of a kalla who became a nidda before the couple had relations. The Divrei Yechezkel claims that by mentioning them in the same halacha, the Rambam clearly indicates that in his opinion, the prohibition of yichud in this case is de’oraita.

^Practical Ramifications

A possible ramification of this dispute may arise where the chatan and kalla were intimate on some level before she became a nidda but did not manage to consummate the marriage fully (a phenomenon that is quite common in our day). The Maharshal[22] rules that in such a situation, even if there was he’ara (the initial stage of intercourse), the prohibition of yichud still applies. But Rav Menashe Klein[23] rules that in a case where the couple was intimate but did not fully consummate the marriage, there is no need for a prohibition of yichud. Rav Eliezer Waldenberg[24] suggests that the issue depends upon whether we view this unique issur yichud as derabanan or de’oraita.

^Conclusion

We have seen that although there is a Torah prohibition of yichud with forbidden relationships, there are some exceptions to the rule such as a mother and son, a father and daughter, and a husband and wife. However, when the husband and wife have not yet consummated the marriage, the prohibition is still extant. We saw that there is a dispute among the poskim whether this prohibition applies even if the couple had the opportunity to have relations but did not do so. Finally, we discussed whether this prohibition of yichud between a chatan and kalla is de’oraita or derabanan with the halachic ramifications that stem from this. Obviously, this topic is very sensitive for a newly wed couple and a competent halachic authority should be consulted as to what steps can be taken to avoid this situation from the outset, and how to deal with it should it ultimately arise.

[1] Kiddushin 80a

[2] Devarim 13:7

[3] These forbidden relations are mentioned in sefer Vayikra, parshat Acharei Mot.

[4] Although the Gemara in Kiddushin uses the language “remez,” most Rishonim understand this to be a de’oraita principle, based upon other passages in the Gemara (Sanhedrin 21a; Avoda Zara 36b).

[5] Sanhedrin 37a

[6] Ketubot 4a

[7]  The Gemara actually discusses a complicated case where the chatan or kalla become an avel, and the ensuing discussion evolves into the question of whether the sheva berachot take precedence over aveilut or vice-versa. This discussion is beyond the purview of this article, and we will suffice with the conclusion mentioned in the body of the article.

[8] Rambam, Hilchot Issurei Bi’ah 22:1

[9] Shulchan Aruch, y.d. 192:4

[10] Terumat HaDeshen, siman 263

[11] Bava Kamma 19b

[12] Yam shel Shlomo, Ketubot ch. 1

[13] Sefer Pleiti, y.d. 192:3

[14] Rambam, Hilchot Ishut 10:6

[15] Shulchan Aruch, y.d. 192:4

[16] Ibid.

[17] Shach, y.d. 192:9

[18] Sefer Pleiti, op cit.

[19] Shiurei Rabbi Dovid, Ketubot 4a

[20] Divrei Yechezkel, siman 16

[21] Rambam, Hilchot Issurei Bi’ah 22:31

[22] Ibid.

[23] Responsa Mishneh Halachot 5:147

[24] Responsa Tzitz Eliezer 6:40, Kuntres Issurei Yichud, ch. 25

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