Indira takes fight over missing daughter to Federal Court
Indira takes fight over missing daughter to Federal Court
M Indira Gandhi's lawyer poses six questions of law, including whether a claim for nonfeasance by public officers requires proof of breach, causation and damage.
Indira filed an application yesterday for leave to appeal against the Court of Appeal’s Aug 24 dismissal of her suit over the authorities’ failure to arrest her former husband, K Patmanathan, who converted to Islam and took the name Riduan Abdullah.
Her lawyer, Rajesh Nagarajan of Raj & Sach, has put six questions of law before the Federal Court, arguing they involved important legal principles and matters of public interest.
Case management has been fixed for Oct 26.
The questions include whether a claim for nonfeasance by public officers requires proof of breach, causation and damage in the same way as negligence.
Indira also wants the apex court to decide whether she must identify a specific police action which, if properly carried out, would probably have prevented her loss.
Another question is whether later evidence concerning the whereabouts of a person subject to an unexecuted warrant can materially affect such a claim.
The case stems from the disappearance of Indira’s youngest daughter, Prasana Diksa, who was 11 months old when Patmanathan took her on March 31, 2009.
Indira was subsequently granted custody and Patmanathan was ordered to return Prasana. He was later found in contempt and ordered to be imprisoned until he surrendered the child, with a warrant of committal issued for his arrest.
In 2016, the Federal Court ruled that police had a statutory duty under Section 20(3)(f) of the Police Act 1967 to execute the warrant.
The High Court, in dismissing the suit, held that Indira had failed to establish the necessary elements of her claim. It also found that she had not proved that the police officers had acted maliciously or in bad faith, a finding which later became one of the issues challenged on appeal.
The court also held that the police’s failure to execute the warrant had not caused the loss complained of, including the continued disappearance of Prasana. Indira appealed against the decision to the Court of Appeal.
On Aug 24, a three-member Court of Appeal panel led by Justice Faizah Jamaludin upheld the dismissal of Indira’s damages suit.
But the court found the High Court had erred on several legal issues, including requiring Indira to prove malice or bad faith. It also found gaps in the police evidence.
However, the judges said Indira still failed to prove that earlier or proper police action would probably have led to Patmanathan’s arrest or Prasana’s recovery.
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