KUALA LUMPUR (July 16): The Malaysian government has failed to strike out a nonfeasance suit brought 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.

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, and the Home Minister as defendants. In striking out the defendants' application to dismiss her suit today, the court also ordered them to pay total costs of RM5,000 to Indira.

Justice Mohd Nazlan Mohd Ghazali, who made the decision today, said the government's contention that the suit is a multiplicity of proceedings is not acceptable, as there is ongoing judicial proceedings at the Ipoh High Court, which is still monitoring the progress of the execution of the committal order that was issued against Ridhuan in 2014.

“This is primarily because both the cause of action of the tort of nonfeasance and the remedy of damages in this suit have never been raised before in any other proceedings. Indira in the judicial review was granted the mandamus in respect of the committal order, which was affirmed by the Federal Court.

“That does not, however, bar her from instituting a civil claim like presently to seek damages for the loss she claims to suffer as a result of the alleged nonfeasance of the defendants in respect of the mandamus and committal order,” the judge said in delivering his judgement.

He also said he was satisfied, based on the affidavits, that there are material factual disputes as to whether relevant efforts and steps have been taken by the defendants towards the enforcement of the committal order.

“This alone means the suit is not a plain and obvious case to be struck out at this early stage. The court is especially mindful that every Malaysian citizen has a constitutional right of access to justice under the Federal Constitution, and the effect of striking out a claim is to completely deprive her from having her day in court.

“I find the suit for declaration and damages for the tort of nonfeasance in public office and against the other defendants for being vicariously liable in respect of the enforcement of the committal order cannot be said to be vexatious, frivolous or an abuse of the Court process. This case should go for a full trial with the calling of witnesses. The striking-out application is therefore dismissed,” the judge added.

Justice Nazlan also allowed an interrogatories application from Indira's lawyer Rajesh Nagarajan, in which the latter posed 19 questions that are to be answered by the IGP in the form of an affidavit to explain the police's failure to locate Ridhuan.

The court subsequently fixed Dec 15 for the hearing of the suit.

The couple has 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 had, in 2016, affirmed the mandamus order directing the police and the defendants to apprehend Ridhuan and retrieve Prasana to return to Indira.

Last October, Indira, 45, sued the defendants over their alleged failure to locate and return her 12-year-old missing child, Prasana.

In her statement of claim, Indira said the IGP had refused to adhere to a committal order that required Riduan, 51, 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 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.

Today, via a virtual press conference, Indira hailed the court's decision and said she was looking forward to the trial and hoped for her day in court again would be successful.