Shurayh does not consider it permissible to pass judgment against an absent party. A similar view is reported from Ahmad. This is also the position of Ibn Abi Layla, al-Thawri, Abu Hanifa, and his followers. It has been narrated from al-Qasim and al-Sha'bi, although Abu Hanifa said: If he has a representative present, such as an agent or a mediator, it is permissible to pass judgment against him. They argued with what was narrated from the Prophet, peace be upon him, that he said to 'Ali: "If two men bring their case to you, do not judge for the first until you have heard the words of the other, for then you will know how to judge." Al-Tirmidhi said: This is a hasan (good) hadith. Furthermore, it is a judgment against one of the two litigants alone, so it is not permissible, just as if the other party were in the city. Additionally, it is possible that the absent party has something that would invalidate the evidence or cast doubt upon it, so it is not permissible to judge against him. Our position is that Hind said: "O Messenger of Allah, Abu Sufyan is a stingy man and does not give me what suffices me and my children." He said: "Take what suffices you and your children, according to what is customary." This is mutually agreed upon, and thus he judged against him in her favor, even though he was not present. Furthermore, this is based on heard and credible evidence, so it is permissible to judge by it, just as if the litigant were present. Abu Hanifa has agreed with us regarding the hearing of evidence. Furthermore, what is delayed regarding the plaintiff's request when he (the defendant) is present is prioritized when he is absent, such as hearing evidence. As for their hadith, we accept it: if two men bring a case to him, it is not permissible to judge before hearing the words of both, and this implies that they are both present. The present party is different from the absent party, for evidence is not heard against a present party except in his presence, whereas the absent party is otherwise. Abu Hanifa has contradicted his own principle, as he said: If a woman comes and claims that she has an absent husband, that he has money in the hands of a man, and she needs sustenance, and he (the man holding the money) confesses to her regarding that, the judge shall rule against him (the husband) for the sustenance. Also, if a man claims against a present party that he bought from an absent party something in which there is a right of pre-emption, and he provides evidence for that, he judges for him regarding the sale and the exercise of pre-emption. And if the defendant dies, and some of his heirs or the agent of the absent party attends, and the plaintiff provides evidence for that, he judges for him according to what he claimed. Once this is established, if the absent party arrives
(1) In the original: "wakiluhu" (his agent). (2) In: The chapter on what has been narrated regarding the judge between the two litigants until he hears their words, from the chapters of rulings. 'Aridat al-Ahwadhi 6/72. It was also recorded by Imam Ahmad in: Al-Musnad 1/143, 150. And al-Bayhaqi in: The chapter on what the judge says when the two litigants sit before him, from the book Adab al-Qadi. Al-Sunan al-Kubra 10/137. (3) In the original and [M] there is an addition: "sahih" (authentic). It is not in al-Tirmidhi. (4) Its verification preceded in: 11/348. (5) Omitted from: [M].
