Responsum: On a Missing Husband

Question: Someone went forth to trade among the towns of Egypt with a heavy load, and he came to a city and entrusted some of the merchandise to a Jew, with the proviso that he would return in eight days, but he went off and had not come back even after three months. His wife and his father and his mother all felt certain, and they said, “He intended to return in time for Tishri and spend the whole festival month at home. We think some evil must have befallen him, and so does the man with whom he left the merchandise.”

His father and mother went to look for him. Some Muslims and Christians told them, “We all went out swimming, but he did not know how to swim and went under.” They precisely described his face, his looks, his height, and even told them his name. They went off with some Jews to see if they could find him and bury him. They found some non-Jewish villagers dwelling on the banks of the river, who told them, “A man floated past us on the water dead. His clothes looked thus-and-so, his face thus-and-so, and his forehead thus-and-so.”¹ They gave all his identifying marks at once. The same thing happened in other towns. “But we were too afraid that the government would haul him out of the river and bury him.” His family waited for him for a year and then a second year, hoping to hear either from him or some news of him, but they heard nothing. His wife came and retrieved the merchandise that had been deposited with the Jew. In this situation, is his wife permitted to remarry?

Answer: If it is as written in the question, we see fit to rule as follows: Because he drowned in water that has no limit,² his wife is forbidden to remarry. Even though they said, “He was with us and went under,” we consider that he may have surfaced in some other place, following the talmudic teaching:

R. Akiva said: I once was traveling on a boat and saw another boat capsize in the sea. I was in great distress for the scholar who had been on board. And who was it? R. Meir. But when I got to the province of Cappadocia, he came and sat down to discuss the law with me. I said to him, “Son, who got you out of the water?” He replied, “One wave handed me to its fellow and that one to its fellow, until they spat me back up onto the beach.” I said, “Great are the words of the sages, who said: If he fell into water that has no limit, his wife is forbidden to remarry.” [b. Yevamot 121a]

With regard to what they wrote about describing his face and his forehead, the signs they describe are those they saw when he was living. Who fished him out once he had drowned and saw these signs?

As for what is written about them going with some Jewish people to see if they could find him and bury him, when the non-Jews living along the riverbank told them, “A dead man passed by us, and he had such-and-such distinguishing marks of clothes and forehead and face.” One must say that this might have been someone else. Even though they identified his clothes and his forehead, the sages have already ruled: We do not accept testimony unless it describes the face full on, with the nose, even if his clothes and his body are identified [m. Yevamot 16:3]. Even if they waited on him for a year or even two years and heard nothing from him, we do not permit his wife to remarry. For we consider that some blemish might have appeared in him, and he fled out of shame. Remember the talmudic story:

There once was a man whose bridal chamber caught fire, at the end of the wedding celebration. His wife shouted, “Look! My husband!” They found the charred body of a man, and a severed hand lying there. R. Ḥiyya bar Avin concluded: This is the same as the previous case, where a woman shouted, “They burned the house on us!” or “They burned the cave on us!” Since she said, “He is dead, but I escaped,” she is not believed. Here too her testimony is not reliable.

Rabbah said to him: Is that case similar? In that one, she did not say, “Look! My husband!” And here is the charred body of a man, and a severed hand lying by it!

R. Ḥiyya bar Avin might respond: You could just as well say that it is the body of another man, who tried to rescue them. As for the hand, it could be that the fire separated it from the body. Meanwhile, the husband developed a blemish and ran off. [b. Yevamot 115a]

But if she has already married, she need not be divorced from her new husband, for thus they conclude:

It does not matter whether the husband was an ordinary man [whose rescue might not be publicized] or an outstanding young Torah scholar³ [who would surely be noticed]. It is forbidden for her to remarry, but if she has already remarried anyway, it is permissible. [b. Yevamot 121b]