Mikveh During Aveilut by Rabbi Dov Linzer

לגרסה העברית לחצו כאן /Read this teshuva in Hebrew

Question:

I am currently sitting shiva for my mother a”h. I am also currently in niddah and my mikveh night would be tomorrow night. I know that during shiva I’m not allowed to have sex with my husband but I wanted to know if I could go to the mikveh so that we can hug and touch, at least in a non-sexual way. I could really use a hug from my husband and his reassuring touch during this time. Would we also be allowed to sleep in the same bed?

Answer:

In my previous teshuva, I addressed the question of whether the harchakot apply during aveilut when sex is forbidden. The conclusion of that analysis was that supportive, non-intimate touch was permissible and advised. Also, sharing a bed, provided the couple is wearing nightclothes, would be appropriate if necessary for emotional support.

In this teshuva, I will address the second part of the question: is a woman sitting shiva allowed to use the mikveh in general, and if not, would the need for emotional support provide a special basis for allowing that?

The Gemara does not directly address the case of a mourner immersing in a mikveh. A mourner may not bathe (Moed Katan 15b, Taanit 13a-b, Berakhot 16b), but it is not immediately obvious whether immersing in a mikveh falls under that prohibition. Regarding Tisha b’Av and Yom Kippur, days when it is forbidden to bathe, the Gemara quotes a braittastating that a person who has an obligation to immerse in a mikveh may do so (Beitzah 18b, Yoma 88a, and see also Ta’anit 13a). Many Rishonim rule against this and state that a man or woman who is tamei, ritually impure, is forbidden to immerse on Yom Kippur or Tisha b’Av. Their argument is as follows: the permission to immerse on Yom Kippur is based on the principle tvilah bi’zmanah mitzvah — immersing immediately on the day when one becomes obligated is a mitzvah. However, we rule that tvilah bi’zmanah is not a mitzvah, or that even if it were a mitzvah at the time of the Gemara, it is no longer a mitzvah today since nowadays no one immerses on the day that is mandated by the Torah (see Tosafot Beitzah 18b, s.v. Kol; Ramban, Torat Ha’adam, Inyan Aveilut, s.v., bi’Richitza Keitzad, and Tur and Beit Yosef YD 197 and 381, and OH 545 and 613).

Shulkhan Arukh rules in accordance with these Rishonim and states the one may not go to the mikveh on Yom Kippur (OH 613:12) or on Tisha b’Av (OH 554:8). Shulkhan Arukh rules similarly regarding aveilut, where he applies this ruling to the case of niddah (YD 381:5):

Based on this, one would conclude that it is always forbidden for a woman to go to the mikveh during aveilut. The matter is not so simple though. Rema extended this prohibition and ruled that a woman in aveilut who was ending her menstrual period was not allowed to wash herself, even for the purpose of beginning to count her seven white days (YD 382:5). Masait Binyamin (no. 5) and Taz (YD 381:2) reject this. They point out that bathing is only forbidden during aveilut when it is done for pleasure; a person is permitted to wash in order to remove dirt from his or her body (YD 381:1). There is no basis, they state, to forbid washing that is not done for pleasure, and is done only to prepare a woman for her niddah counting. If so, then using the mikveh should likewise not be forbidden since it is not done for pleasure, but they explain that use of a mikveh is forbidden for another reason: it serves no purpose. In Taz’s words:

Not only is bathing for pleasure forbidden, but so is bathing that serves no purpose. During aveilut, and on Tisha b’Av and Yom Kippur, sex is prohibited, and using the mikveh on those days is an act of purposeless bathing, and thus forbidden. This framing follows Tosafot (Beitzah 18b, s.v. Kol) is widely accepted by poskim.

If the reason that a woman may not immerse during her aveilut is because it is a form of bathing that serves no function, then the following questions present themselves:

• Is using a mikveh always forbidden, or would it be permitted if it serves a legitimate purpose?
• Would allowing husband and wife to touch during shiva be considered a legitimate purpose?
• Is there a concern that going to the mikveh may be seen by the wife or the husband as a prelude to sex and be too risky to allow during shiva for that reason?

We will examine a number of teshuvot regarding similar cases to answer these questions.

Is the rule that women may not use the mikveh during aveilut absolute and without exception? Maharik (R.Yosef Colon, 1420-1480, Italy) indicates that it is. He states that he never knew of a case where a woman immersed in a mikveh during her aveilut — ומעולם לא ראיתי לטבול בימי אבלות (Shoresh #35:3, quoted in Beit Yosef OH 545 and 613). This speaks strongly to the sense that, at least in Maharik’s experience, no exceptions were made.

In contrast, Binyamin Ze’ev (R. Binyamin b. Matityahu, 1475-1545, Greece-Turkey) (Teshuva #148) rules against those — like the Shulkhan Arukh — who forbid a woman to immerse during shiva. He states that going to the mikveh at this timeserves a purpose as it will allow husband and wife to resume marital relations as soon as aveilut terminates¹. For Binyamin Ze’ev, a woman may always use the mikveh during shiva. Similarly, Bach (YD 381, s.v. u’Mah Shekatav vi’Yeish Omrim) states that going to the mikveh is always permitted, as it is not done for the sake of deriving pleasure from the bathing, but rather for the purpose of leaving the state of niddah. He further states that this seems to be the position of Tur, namely, and he ends by quoting Binyamin Ze’ev approvingly.

Shulkhan Arukh, as we have seen, rejects Binyamin Ze’ev and states that a woman may not immerse during this time. The question remains whether Shulkhan Arukh forbids mikveh use in all circumstances, or whether he would permit it cases when it serves a legitimate purpose.

This question is taken up by Pri Megadim (R. Yosef Teomim, 1727-1792, Galicia) and by R. Chayim Luria (1864-1941, Lodz). Pri Megadim asks whether a woman in niddah may go to the mikveh the night before her final day of shiva to allow her to have sex with her husband after shiva ends the next morning (Shut Megidot, 93). He initially argues that such an immersion should be permitted, but he then states: “Nevertheless it would seem that we do not make distinctions (לא פלוג)” and points to the unqualified ruling of the Shulkhan Arukh that tevilah during aveilut is forbidden.

Pri Megadim then addresses another case: what if this woman who is sitting shiva and in niddah needs to attend to her sick husband? We rule that a woman in niddah may attend to her husband when he is ill even if it involves non-sexual touch (see YD 195:15). The necessity to care for her husband while he is ill is an exception to the usual harchakot that apply during niddah. Pri Megadim asks whether in this case we can allow a woman sitting shiva to go to the mikveh so that she may avoid being in niddah while attending to her ill husband. Here Pri Megadim states that יראה להתיר “it seems that one should permit it,” but he ends his discussion by commenting, “This requires greater investigation.” It is not clear why Pri Megadim considers the case involving the sick husband as more justified than the previous case. It may be because he sees this as a greater need, or it may be because this tevillah serves a purpose during aveilut, in contrast to the first case about immersing during aveilut in order to allow the couple to have sex after aveilut. Regardless, he is inclined to allow this last case, albeit with some hesitation. For Pri Megadim it seems that the restriction against immersing is not absolute and can allow for exceptions in certain cases of serious need.

R. Chayim Luria also addresses the case of the husband who is ill (Meishiv Halakha #125). In his teshuva, he does not consider the possibility that the ruling of Shulkhan Arukh should be taken as a categorical prohibition, and states that the only time when immersion is forbidden is because it serves no purpose. He concludes that immersion to attend to a sick husband serves a valid purpose as it alleviates the need to make an exception to the restrictions of harchakot, and is thus permitted. He notes that he consulted great rabbis and they concurred with his opinion.

In the case of a husband who is ill, a woman may immerse during shiva according to R. Chayim Luria, and this is also how Pri Megadim is inclined to rule. In such a case, the immersion is not done for pleasure and is done for a legitimate purpose; it is thus not a forbidden form of bathing during shiva.[2]

Where does this leave us? May our case be considered an equally legitimate purpose and also permissible during aveilut?

Some would reject this suggestion and assert that any form of touch that is not purely casual is forbidden or, at least, inappropriate during aveilut. This is not our position. As we established in our earlier teshuva, many Rishonim state that even sexual touch — חיבוק ונישוק — is permitted during aveilut, and although Rema rules that חיבוק ונישוק is inappropriate (“יש להחמיר”), a distinction needs to be made between sexual touch on one side, and comforting, supportive touch on the other. The former is inappropriate during aveilut, the latter is permitted.

If supportive and comforting touch is indeed appropriate during aveilut, does it create sufficient warrant to permit the woman to go to the mikveh?

Many would argue that it does not and that this presents a lesser need than attending to a sick husband. As we have seen, in the case of a sick husband, immersing allows us to avoid making an exception to the restrictions of harchakot. Avoiding such exceptions — it can be argued — is a truly pressing need, whereas husband and wife’s need for emotional support through touch is less so.

The opposite argument could be made as well: the case of a sick husband does not actually require exceptions to the rules of harchakot to be made. The wife could simply choose not to assist her husband in ways that require her to touch him. Going to the mikveh for this woman is about enabling her to assist her husband in all ways, including washing him, helping him get up, lie down and the like, and to do so in the best possible halakhic fashion. It would seem to me that if attending to those physical needs provides sufficient justification for immersing during aveilut, the same would be true regarding attending to one’s serious emotional needs. It is important to remember that the argument is not that certain needs override or allow an exception to the restriction against immersing, rather that when they are present the immersing is not a forbidden form of bathing, since it is neither for pleasure nor without purpose.

There are those who would argue against this, and state that only a mitzvah purpose would allow immersion. They could point to the ruling of Shulkhan Arukh (OH 613:11, following Rambam Shvitat Asor, 3:3) that even a man whose practice it is to immerse after seminal emission may not do so on Yom Kippur, because this practice is only a minhag, and not strictly required. However, even putting aside the fact that there are those who do permit such a person to immerse on Yom Kippur (see Tur OH 613 in the name of Rav Yehudah Bercelona, and Kaf HaHayim OH 613:11), the simple fact is that the prohibition of bathing on Yom Kippur is much more restrictive than that during aveilut. On Yom Kippur, unless there is a legitimate need, a person cannot even put his finger in cold water (OH 613:1), while a mourner is permitted to bath individual limbs in cold water (YD 381:1). This difference indicates that the prohibition against bathing on Yom Kippur is of a more categorical and absolute nature, while the aveilut restriction is limited to cases when the bathing serves no purpose, as we have seen in Taz, Pri Megadim and R. Chayim Luria. And, in fact, there are those who permit a man who had seminal emission to go to the mikveh during aveilut, even though this is only a minhag (see Nitei Gavriel, Aveilut 105:2).

Thus, following the framing of Taz and Tosafot (Beitzah 18b, s.v. Kol), and the specific rulings of Pri Megadim and R. Chayim Luria, I would rule that if the woman is in emotional distress and is feeling a great need for physical contact with her husband to provide her necessary emotional support, she is permitted to use the mikveh during heraveilut.

Rabbi Shraga Feivel Kohen, in Badei HaShulkhan (YD 381:5, Beiurim, s.v. Niddah) makes the same argument. He states that if – following Shakh and Taz – the only reason that a woman cannot go to the mikveh during aveilut is because it serves no purpose, then she should be permitted to do so for the purpose of physical intimacy:

Badei HaShulkhan states that he is unable to understand why – given this compelling argument – Shulkhan Arukh rules that a woman in niddah cannot go to the mikveh during aveilut. A possible resolution is that Shulkhan Arukh was dealing with standard cases, and not cases of emotional distress. While sexual – and certainly intimate – touch is permitted during aveilut, it does not provide sufficient warrant to permit immersion. However, when there is an acute need for comforting, supportive touch, there would be sufficient basis to permit mikveh use.

I do not think that this ruling should be extended beyond cases of emotional distress. First, remember that Pri Megadim expressed hesitation in his ruling to permit tevillah under special circumstances. Second, only cases of emotional distress are sufficiently weighty to be equated to cases of attending to the physical needs of a sick person.

Most significantly, and as stated above, is the simple fact that if every mourner who needed emotional support were permitted to use the mikveh, we could not explain why Shulkhan Arukh rules in such a blanket way that a woman may not use the mikveh at this time. It is clear that for Shulkhan Arukh the standard case of a mourner does not provide sufficient justification for using a mikveh. However, in cases where the mourner is in emotional distress and feeling a great need for the comfort and support that her husband’s touch can provide, it would be permissible.

We must also consider the fact that most mikvaot nowadays are heated and there tend to be more restrictions when it comes to bathing in hot water than in cold. Specifically, a person in mourning is permitted to wash his hands, face and feet in cold water, but not in hot (381:1). Nevertheless, when bathing in hot water is necessary – say to wash off sweat – it is permitted. And the Talmud (Taanit 13a) states that if we were to rule that tvillah bi’zmanah mitzvah and it would be permitted as a rule to go to the mikveh during aveilut, then a person could go to a mikveh of hot water if there was nomikveh of cold water available. Finally, it should be remembered that Pri Migadim, Rabbi Chaim Luria, and Badei HaShulkhan all discussed the possible permissibility of a woman to use the mikveh when in aveilut, and never raised the concern that she would have to use a mikveh of cold water and not one of warm or hot water (and see Pitchei Teshuva, YD 197:2, where it is clear that in general the use of mikvaot with warm or hot water was a widespread practice).

Nevertheless, if possible, she should attempt to arrange to use a mikveh with only lukewarm, and not hot, water for this purpose. As a rule, even when bathing certain parts of the body is permitted for a legitimate purpose, cold water should be used rather than hot water if it will suffice. Thus, Nitei Gavriel, who permits a man who saw a seminal emission to use the mikveh during aveilut, demands that the water in the mikveh not be hot. Moreover, immersing one’s body in hot water is a pleasurable experience even if one is not intending for it to be so. Thus, immersing in lukewarm water is to be strongly preferred, if at all possible.

One final issue needs to be addressed: the concern that going to the mikveh might lead to the couple having sex. The permissive rulings in the case of a sick husband are not relevant to this issue, because it is not realistic that the couple would be having sex while the husband is sick. Moreover, in our case, where the woman is going to the mikveh specifically in order to allow the couple to touch and share a bed, there might be a reasonable risk that such touch, following the wife’s return from the mikveh, might lead to them having sex.

This concern was first raised by Binyamin Ze’ev, who permits a wife to use the mikveh during aveilut, not only under circumstances where sex is possible but also where she is doing so specifically to enable her and her husband to have sex as early as possible when the shiva terminates. Binyamin Ze’ev spells out the possible risk:

Binyamin Ze’ev rejects this concern:

In a similar case of immersing during aveilut to allow the couple to resume martial relations as early as possible, Pri Megadim expressed no concern that this would lead to the couple having sex; he just ignored the problem. By ignoring the problem Pri Megadim is implicitly stating that he does not acknowledge that such a risk exists. Consider: when the woman is not in niddah, the couple is permitted to touch and possibly share a bed during aveilut (see my earlier teshuva), and yet we are not concerned that this will lead to sex. Why should going to the mikveh change any of this? Although returning from the mikveh is often associated with the couple having sex that night, it need not be. Many forms of touch and physical intimacy become permitted when the wife is no longer in niddah, and mikveh use can be seen through a wider lens than just that of permitting sexual intercourse.

This point emerges clearly from the rulings of a number of poskim regarding cases other than aveilut where sex is forbidden. These poskim rule that although sex is forbidden in the cases under discussion, the wife should immerse so that the couple may engage in sexual touch, which would be permitted in those circumstances.

Even haShoham (#21, quoted in Pitchei Teshuva YD 183:22) allows a woman to use the mikveh on a woman’s onat ha’veset, the time she is expecting her period. The halakha is that on the night that a woman is expecting her period, she and her husband may not have intercourse, although they may engage in sexual touch. He rules that although intercourse is forbidden that night, she should use the mikveh so that she and her husband can engage in sexual touch, which is also part of the mitzvah of marital sex. Maharm MiLublin #53, quoted in Shakh YD 197:3, rules similarly in an analogous case.

In those cases the woman is going to the mikveh specifically to enable the couple to engage in sexual touch, and yet these poskim raise no concerns that this will lead to the couple violating the restrictions against sexual intercourse.

Conclusion:

In the case of a woman who is sitting shiva and in niddah, she may use the mikveh if she is experiencing emotional distress and feels a great need for her husband’s touch to provide her with emotional support. The immersion is neither done for pleasure nor is it done without purpose, and as such is not a form of bathing prohibited to a mourner. There is no need to be concerned that the use of the mikveh will lead the couple to violate restriction against sex during aveilut. They can be trusted to engage in permissible touch and to abide the relevant restrictions fully.

Footnotes:

1 His primary emphasis is that because it serves the purpose of enabling husband and wife to resume marital relations sooner rather than later, mikveh use for a woman who is in niddah is always considered a mitzvah, and hence permitted based on the principle of tvilah bi’zmanah mitzvah. He also indicates that because this bathing is not being done for pleasure, it is not the type of bathing prohibited to a mourner- דדוקא רחיצה דתענוג ושל הנאה הוא דאסור הא רחיצה דמצוה שרי.

2 It should be noted that one of the rabbis whom R. Luria consulted concluded that immersion was permissible only for the following reason: it is better to allow a one-time exception to the prohibition of bathing when in shiva than to allow ongoing exceptions to the restrictions of harchakot. According to this line of reasoning, the permissive ruling in the case of the husband who is ill would not be applicable to other cases. As we have seen, this was not the approach of R. Luria himself, nor that of Pri Megadim. For them the question is: is the bathing being done with a legitimate or sufficiently justifiable purpose? If so, it is not a form of bathing that is prohibited during aveilut.