THE police and Government have failed in their bid to dismiss M. Indira Gandhi’s lawsuit over the authorities’ alleged failure to arrest her Muslim convert former husband and recover their daughter Prasana Diksa.
A three-member Court of Appeal panel found no merits in the Government’s appeal and upheld last year’s Kuala Lumpur High Court ruling by judge Datuk Mohd Nazlan Mohd Ghazali to proceed with the trial.
“We are of the view that the learned High Court judge was correct in his finding that whether the appellants were liable for the tort of nonfeasance as alleged by the respondent is a matter of evidence which must necessarily be dealt with by way of trial,” ruled Court of Appeal judge Datuk Hanipah Farikullah.
“We are of the conceded view that based on the facts and circumstances of this case, there are complex issues of law including issues on the interpretation of Section 7(2) of the Government Proceeding Act, Section 20 of the Police Act and also the common law positions of the tort of nonfeasance by the public officer.”
Hanipah was leading a panel of judges consisting of Datuk Gunalan Muniandy and Datuk Ahmad Zaidi Ibrahim.
She ordered the Government to pay RM10,000 in costs to Indira and told the High Court in Kuala Lumpur to hear the case on Sept 14.
She said there were “complex issues of law” that needed to be ventilated at a full hearing.
Indira, 46, sued the defendants in October 2020, over their alleged failure to locate and return her now 14-year-old missing child, Prasana Diksa.
In her statement of claim, Indira said the IGP had refused to adhere to a committal order that required her former husband Muhammad Riduan Abdullah, 52 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 also claimed 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 Shariah 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.
Indira and Ridhuan have three children, including Prasana. But 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 in 2016 affirmed the mandamus order directing the police and the defendants to apprehend Ridhuan and retrieve Prasana to return her to Indira.
However, the whereabouts of both father and daughter remain unknown since 2009. – Sept 7, 2022
Main pic credit: The Vibes
