Is it permissible for a judge to rule against an absent defendant based on the plaintiff's evidence?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
A judge must respond favorably when someone claims a right against an absent person in another city and requests the judge to hear the evidence and issue a ruling against the absent party, provided all necessary preconditions are met. This view is held by Ibn Shubruma, Malik, Al-Awza'i, Al-Layth, Suwar, Abu Ubayd, Ishaq, and Ibn al-Mundhir. The evidence supporting this is the Hadith concerning Hind who complained about her stingy husband, leading the Prophet, peace be upon him, to rule that she should take what suffices her and her children according to custom, though the husband was absent. Furthermore, if the plaintiff has just and audible witnesses, the ruling based on them is valid, just as if the opponent were present.
Supporting text
The opposing view, held by Shurayh, Ibn Abi Layla, Al-Thawri, Abu Hanifa and his companions, and narrated from Al-Qasim and Al-Sha'bi, prohibits ruling against the absent party. Their primary evidence is the Hadith narrated about the Prophet (PBUH) instructing Ali: "If two men bring a suit before you, do not judge for the first until you hear the words of the other, for then you will know how to judge." They argue that ruling for one party alone is impermissible, similar to when the opponent is present in the city, and because the absent party might possess evidence that invalidates or weakens the plaintiff's testimony. Abu Hanifa partially deviated, allowing judgment against the absent party if there is a present representative, such as an agent or someone exercising the right of preemption.