KUALA LUMPUR (Jan 5): The lawsuit filed by kindergarten teacher M Indira Gandhi over the police’s failure to look for her former husband K Pathmanathan @ Muhammad Ridhuan Abdullah, who converted to Islam and took their youngest child away, will begin on Jan 8, 2024, at the High Court here.
This is the first time that a tort of nonfeasance — the failure to perform an act required by law — is being heard in Malaysia, whereby Indira is accusing the police of not acting to look for Ridhuan and the couple’s child Prasana Diksa, despite a warrant of committal issued by the court in 2016 to arrest Ridhuan for contempt of court for refusing to hand custody of the child to her.
Besides the Malaysian government, Indira, who is seeking RM100 million in damages in her suit, also named the police, the Inspector General of Police (IGP), and the home minister as defendants.
Indira’s lawyer Rajesh Nagarajan told The Edge that Judicial Commissioner Datuk Raja Ahmad Mohzanuddin had set the dates at a case management via Zoom on Thursday (Jan 5). Originally, the case was fixed to be heard by judge Datuk Mohd Nazlan Mohd Ghazali but he has been elevated to the Court of Appeal (COA).
The couple has three children, including 12-year-old Prasana. In 2009, Ridhuan converted to Islam and then took Prasana away a year later, which resulted in a protracted court battle for custody of the child.
The Federal Court had, in 2016, affirmed the mandamus order directing the police and the defendants to apprehend Ridhuan and retrieve Prasana to return to Indira.
In October 2020, Indira sued the defendants over their alleged failure to locate and return Prasana.
In her statement of claim, Indira said the IGP had refused to adhere to a committal order that required Ridhuan to be committed to prison until Prasana is delivered to her.
She also accused the police of ignoring a recovery order that required the court bailiff and police to search for, retrieve and return Prasana to Indira. Both orders were issued by the Ipoh High Court.
Indira claimed that the IGP had failed to adhere to the orders on the basis that he was faced with conflicting orders — namely an order by the Perak Syariah High Court that granted custody of the couple’s three children to Ridhuan, and an order by the Ipoh High Court that granted custody to Indira. As such, she alleged that the IGP had committed the tort of nonfeasance in public office by failing to enforce the orders.
Last year, the COA had dismissed the appeal by the IGP, the police, the government and the Home Ministry to strike out the nonfeasance suit.
Judge Datuk Hanipah Farikullah, who led the bench, in the unanimous decision said there was no error by the High Court judge to dismiss the striking out application by the appellants (the government, police, IGP and home minister).