Before a woman becomes a sotah (wife suspected of adultery) and liable to drink the bitter waters, her husband must warn her not to seclude with a specific man (קינוי). In addition there must be testimony stating that she secluded with this man (סתירה). The rabbis disagree about the number of witnesses to establish these procedures as follows:
|Eliezer (of Mishna)
|Eliezer (of Tosefta)
Note: If one witness is believed the then the husband is also believed.
Quote – Warning from Husband
Rabbi Chanina from Sura said, “A man should not warn his wife nowadays against secluding herself with a specific individual. Perhaps the law is in accordance with the Tosefta, as Rabbi Yose the son of Rabbi Yehudah said in the name of Rabbi Eliezer, that a warning is established through the husband’s own testimony. If she secludes herself with the suspected adulterer then she will be thereby prohibited to her husband.” Since we cannot use the bitter waters of the Sotah, after the destruction of the temple, she will be forbidden to her husband forever (or until the temple is rebuilt).
Code of Law – Shulchan Aruch
Even though this statement is a matter of dispute, as explained above, the Shulchan Aruch (Even Haezer 178:7) quotes this statement as halacha which is surprising. In a dispute between Rabbis Yehoshua and Eliezer, the halacha follows the former. In addition an opinion expressed in the Mishna takes priority over an opinion in the Tosefta. Moreover the Shulchan Aruch (ibid. 178:6) states that a woman is not forbidden to her husband unless he warned her in the presence of two witnesses and two witnesses testify that she was secluded with the suspected according to the view of Rabbi Yehoshua.
On the surface these rulings appear contradictory, do we believe the husband or not? The halachic codifiers distinguish between stringency (חומרא), husband is believed and basic requirements of the law (הדין עיקר), and husband is not believed and must produce two witnesses for the warning and seclusion to substantiate his claim as follows:
|Drink bitter waters
|Must drink (at time of temple)
|Husband does not pay
|Beit din compels
|Beit din cannot compel
Basic Requirement (ibid 115:8)
After warned by two witnesses and seclusion also witnessed by two, the woman has become a sotah through torah law. Consequently, at the time the temple was standing or when it will be rebuilt; she must drink the bitter waters or admit her guilt (Rambam Laws of Sotah 1:1-2). Since she is classified as a sotah the husband does not have to pay the ketubah, in effect she is in breach of her marriage contract. If the sotah admits her guilt or refuses to drink the waters, then the beit din compels the husband to divorce her, again by torah law.
Stringency (ibid. 115:9)
In this case, the husband or a single witness warned her against secluding with a certain man. Even if the seclusion was seen by a trustworthy witness or the husband himself (an additional stringency), the wife is under suspicion but not a sotah. Therefore at the time of the temple she could not drink the bitter waters because they would have no effect. Upon divorce, the husband would have to pay the ketubah because the wife does not suffer a monetary loss due to her husband’s stringency. However she forfeits her ketubah, as a breach of contract, if she confesses to seclusion even without witnesses. In addition the beit din cannot compel the husband to divorce her. It is a personal matter and left to the discretion of the husband to fulfill his moral obligation שמים ידי לצאת.
The statement of Rabbi Chanina of Sura validating one witness for the warning is a stringency which is accepted by halacha with certain limitations. However the statement of Rabbi Yehoshua requiring two witnesses for both warning and seclusion is halacha by torah law.