Ruling on the Divorce of a Bewitched Person and the Effect of Magic on Willpower Between Islamic Jurisprudence and Libyan Law: A Comparative Study

Abstract

This study examines the legal ruling on the divorce pronounced by a person affected by sorcery (sihr) and the impact of sorcery on free will and the validity of divorce. The research adopts a comparative jurisprudential approach, analyzing the opinions of the four major Sunni schools of Islamic jurisprudence, while also considering other juristic views. It further explores the position of Libyan legislation and judiciary, together with the principles established by the Libyan Supreme Court concerning claims related to sorcery and their legal implications. The study reveals the existence of a juristic divergence regarding the extent to which sorcery may affect a person's will and legal capacity, and the consequent legal and religious effects arising therefrom. It concludes that sorcery may, in certain circumstances, have a genuine impact on a person's perception and freedom of choice, both of which constitute essential elements for the validity of legal and religious acts. Accordingly, the validity of divorce depends upon the condition of the husband at the time of pronouncing it. If it is established that the effect of sorcery deprived him of awareness or free choice, the divorce shall not take effect. Conversely, if he retained awareness and volition when pronouncing the divorce, it shall be deemed valid and produce its legal and religious consequences. The study also addresses the evidentiary challenges associated with proving the influence of sorcery in divorce disputes, given the complexity and difficulty of establishing such claims in practice. It identifies the principal legal and Sharīʿah-based standards of proof upon which courts may rely in assessing these allegations, with a view to safeguarding family stability while preventing abuse of legal and religious provisions.