PUTRAJAYA (Aug 11): The appellate court has reserved its judgement on M Indira Gandhi's appeal of her nonfeasance lawsuit against the police for their failure to locate her ex-husband K Pathmanathan @ Muhammad Ridhuan Abdullah who took their youngest child away.
A three-member panel, led by Court of Appeal judge Datuk Mohamed Zaini Mazlan, said that more time was needed to deliberate on parties’ submissions that were presented on Monday.
The panel, which also consisted of COA judges Datuk Faizah Jamaluddin and Datuk Mohd Radzi Abdul Hamid, then set Aug 25 for case management.
Indira is appealing against the High Court’s decision in June last year, where judge Datuk Raja Ahmad Mohzanuddin Shah Raja Mohzan had dismissed Indira's suit, saying that the claim of nonfeasance was a nonstarter.
He had also ruled that Indira had failed to prove that the Inspector General of Police (IGP) and the police's lack of action was due to malice and bad faith.
This case is believed to be one of the rare cases on the tort of nonfeasance — the failure to perform an act required by law.
Indira is accusing the police of not acting to seek Ridhuan and the couple's child Prasana Diksa 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.
The child was only 11 months old when she was taken and she would be 17 years old now, although her whereabouts remain unknown to her mother.
Besides the IGP, the police, the government and the Home Minister were also named as defendants. Indira is seeking RM100 million in damages in her suit which was filed in October 2020.
During Monday's proceedings, the panel actively questioned both parties. Among others, they questioned if the police owed a duty of care to Indira, especially since the court order was a matter of judicial administration between the court and Muhammad Ridhuan.
Indira's counsel Rajesh Nagarajan, however, countered that Indira has an indirect link to the matter. He added that the High Court had relied on a 1994 Indian case law, which was the wrong test in deciding Indira's case.
The counsel went on to argue that as nonfeasance cases were scarce, the correct test was to use the tort of negligence, where the element of malice or bad faith needed to be established.
Senior Federal Counsel (SFC) Nur Ezdiani Roleb, appearing for the respondents, countered that the actions the police had taken to find the estranged husband were listed in the Investigating Officer (IO)'s affidavit.
She added that malice had to be proven in this cause of action.
Indira's counsel, however, questioned the veracity of the police's list of actions due to a lack of documents produced during the one-day trial.