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When and how is it permitted to move a Kever to another location?
By Rabbi Ariel Ovadia
In the turbulent world we live in, many countries which were considered somewhat stable just a few years ago, are now engulfed in civil war or other volatile situations. Fortunately, Jewish communities in places such as Syria, Iraq, Afghanistan and many other such countries have been spared. Still, much of their history was left behind, including Genizot, synagogues, records and cemeteries. This requires the Poskim to handle all types of questions pertaining to salvaging holy articles and gravesites. In this article we will discuss the laws of moving a Kever out of fear of potential desecration, damage due to natural disasters or to be relocated in Eretz Yisrael or near family members.
THE PROHIBITION
Maran in Shulhan Aruch[1] rules that one may not relocate a grave even if it is from a less respectable place to a more respectable place. The Shach and Taz explain that this is because it arouses fear in the Neshama of the deceased from Heavenly judgement, as the Passuk in Iyov[2] implies: שכבתי אז ינוח לי – “I shall find comfort when I lay”. We also find, that when Shaul summoned Shemuel soul for advice about his last war, he was ostracized by Shemuel for causing him to fear that he will be judged[3].
However, there are a few exceptions to this rule. If one will now be buried near the plot of his parents and family members, then even if it is a less respectable place then where he is currently buried, it is permissible. This is because a person is assumed to want to be buried near their family. Similarly, if one is being relocated for burial in Eretz Yisrael this is permitted, as the land of Eretz Yisrael has an element of atonement to it, as the Passuk says in Devarim[4] – “And His land shall atone for His people” [unless the niftar explicitly commanded not to do so]. The Rama adds that for this reason there is a Minhag to put some of the dirt of Eretz Yisrael into the coffin.
Another exception is if the current place of burial may be damage either as a result of flooding or other natural causes, wars, desecration and the like.
GOVERNMENT ISSUES
Sometimes a government wants to demolish a cemetery to make way for public construction or other projects. This can be especially problematic in places where there are aging, inactive cemeteries and the Jewish community is no longer influential. It would seem that the community would be allowed to move the Kevarim so that they do not get desecrated.
The Terumat HaDeshen was asked about a governor who wanted to annex some of the cemetery grounds for his use, and he writes that the community is obligated to put together a sizable amount to spare this course of action. Accordingly, the Poskim write that one must pursue all avenues before moving a grave. Indeed, there a few organizations around the world that are dedicated to preserving aging cemeteries in countries with little or no Jewish population.
Once the community has tried to dissuade the government from their plans and were unsuccessful, they may remove the Kevarot. However, the Hattam Sofer writes, that if this will turn into a slippery slope, and lead the government to think that relocating a Kever is a light matter in Halacha and thus it will stop being a consideration, then it is better to sacrifice a few Kevarot for the sake of the many. Rav Moshe Feinstein זצ”ל, and יבלחט”אRav Moshe Shternbuch cite this Teshuva in response to some of the incidents in which the Israeli and other governments have come up with inflexible plans that involve the relocation of cemeteries.
A TEMPORARY PLOT
Another exception is when the deceased was only buried temporarily in the original burial spot. This was common in the time of the Mishna in which a body would be buried and exhumed a year later, in a process known as Likut Atzamot. The reason why this is permitted is because this was the original intent and thus it does not arouse the Neshama of the deceased to fear the judgement.
Rav Tzvi Pessah Frank, Rav of Yerushalayim in the 50’s and 60’s, discusses this issue in his Teshuvot Har Tzvi. During the British mandate and subsequent Jordanian rule over parts of Yerushalayim many were buried in a haste in disrespectful conditions, due to the constriction of movement and constant war conditions and shelling. Because the original intent was to eventually move the bodies to a better spot, it was permitted to do so once this opportunity was afforded. Nevertheless, if a Kever was deemed to be respectable, then it should be left in place [indeed, the Rebbe of Gur, the Imre Emet, is buried in middle of the Mekor Baruch neighborhood of Yerushalayim for this reason].
Similarly, if a Met is buried in a spot that does not belong to his heirs, it must be removed. This would happen often in the times of the Mishna in when people would find a dead body and bury it in the spot it was found, in accordance with Halacha. Sometimes this spot would belong to someone else, and the body would have to be removed.
The Noda B’Yehuda was asked by the Dayan of Prague about a community that had a 150-year lease on the cemetery grounds. The families feared that when the lease would expire the bodies would be taken out, and wanted to relocate the graves. The Noda B’Yeuda forbade this, because by the time the lease would expire we might already have Tehiyat HaMetim, and also because the community might be able to get together and buy the grounds outright.
COMMUNITY NEEDS
Another exception that is mentioned in the Shulhan Aruch[5] is when a grave causes damage to the public. This can be when it is in middle of a road which causes people to trample and fall. The Rashba adds that this also includes a scenario in which the grave causes the Kohanim and others significant difficulties as they try to avoid becoming impure [whether the site itself from which the Kever is removed is now usable for other purposes involves many details].
How would we define this damage to the public? What is a significant need that would allow a community to relocate a Bet Ha’Almin? Would building roads be an important need? How about laying Infrastructure?
This is indeed a big discussion, especially in Israel, where the government often brings the Poskim such questions.
In the back of Teshuvot Havot Ya’ir there is a Teshuva of Rav David Oppenheim, in which he permits to remove a Kever for a Bet HaKenesset to expand. Because the synagogue needs to accommodate many people, Rav Oppenheimer reasons, there is no greater community need than this. This is despite the fact that it is not a real damage, but merely a need of the community. Ultimately, it would be up to the Poskim to determine whether or not a specific need is important enough to allow us to relocate Kevarim.
MERE BONES
The Noda B’Yehuda, in the aforementioned Teshuva, introduces another leniency. He writes moving bones, with no flesh, would not be subject to this prohibition, proving from various verses there is no fear of judgement once the body is reduced to bones. This is very relevant to various historic excavations or building projects in Israel in which remains of old cemeteries from the time of the Mishna and even earlier are found.
However, the Poskim are reluctant to rely on this leniency. The Shivat Tziyon – son of the Noda B’Yehuda – comments on this Teshuva that the proofs his father cites are refutable. Furthermore, the Tzitz Eliezer points out that there are additional problems associated with relocating a Kever, which would also pertain to bones, such as desecrating a dead body, stealing the rights of the deceased to his burial spot as well as the issue of turning the relocation of Kevarim into a unimportant matter. He adds, that the expression of Maran and other Poskim mentions bones as well.
On a concluding note, I would like to point out that if this is the level of respect that we must have for a dead person, how much more respect must we have for a fellow live human being. May we know no more sorrow and merit to see the Tehiyat HaMetim, speedily in our days, Amen.
Sources:
[1] יו”ד סי’ שס”ג
[2] ג, יג
[3] שמואל א’ כח, טו
[4] לב, מג
[5] סי’ שס”ד ס”ה