Indira Gandhi fails in nonfeasance suit against IGP, police

Saturday 07 Sep 2024

KUALA LUMPUR (June 28): Kindergarten teacher M Indira Gandhi has failed in her nonfeasance lawsuit against the police over their failure to locate her ex-husband, K Pathmanathan @ Muhammad Ridhuan Abdullah, who took their youngest child away.

In delivering his decision on Friday, Judicial Commissioner Datuk Raja Ahmad Mohzanuddin Shah Raja Mohzan said that Indira's claim of nonfeasance — the failure to perform an act required by law — was a nonstarter.

He also ruled that given the evidence before him, the Inspector General of Police (IGP) and the police have made, and are making, efforts to investigate the matter. He added that Indira had also failed to prove that the IGP and the police had acted with any ill-intent.

"Having all that evidence before me and coupled with the fact that in order for the plaintiff to succeed in the tort of nonfeasance, the plaintiff still must demonstrate the existence of malice or bad faith, it is impossible for me to conclude that the IGP and [the police] did not attempt to locate the whereabouts of [her ex-husband].

"Furthermore, this is certainly not a scenario in which Pathmanathan [Ridhuan] was roaming around Kuala Lumpur or any other area in the presence of the police, without the police taking any action despite noticing his appearance.

"If this were the case, I would have viewed that factor in favour of the plaintiff. However, the facts before me indicate that Pathmanathan's whereabouts were unknown. Evidence further suggests that he was in Thailand at some point in time.

"As a conclusion, my interpretation of the evidence suggests that all the efforts made by the IGP and [police] were not indicative of any neglect of their duties. [...] Essentially, what matters to me is that there is evidence that an investigation has been conducted and is still in progress," he said.

The judge added that based on the evidence, the IGP and the police had exercised their duties in a manner they deemed appropriate and it was not up to the judge to second guess that.

At the onset of delivering his decision on Friday, the judge said that it was impossible to imagine the agony that Indira faced as the pain of losing her daughter still persists until today.

Raja Ahmad made no order as to cost, due to the "nature and circumstances surrounding the dispute".

The one-day trial in February, saw Indira take the stand while former IGP Tan Sri Abdul Hamid Bador and another police officer took the stand for the defendants.

This is said to be the first time that a tort of nonfeasance was heard in Malaysia, where Indira was accusing the police of not acting to seek Ridhuan and the couple's child, Prasana Diksa.

The child was only 11 months old when she was taken, and she is 16 years old now.

The child’s whereabouts remain unknown to her mother, despite a warrant of committal issued by the court in 2016 to arrest her ex-husband over contempt of court for refusing to hand custody of the child to Indira.

Besides the IGP, the police, the government, and the Home Minister were also named as defendants. Indira was seeking RM100 million in damages in her suit which was filed in October 2020.

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 Diksa 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 Diksa to Indira. Both orders were issued by the Ipoh High Court.

Indira claimed that the IGP 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 claimed the IGP had committed the tort of nonfeasance in public office by failing to enforce the orders.

In July 2021, the High Court dismissed the application by the defendants to strike out the suit, and the appellate court upheld that decision in September 2022.

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