Indira fails in bid to adduce ex-husband's Budi95, Sara usage records as evidence

 

The Court of Appeal has dismissed an application by kindergarten teacher M Indira Gandhi to adduce fresh evidence in her lawsuit against the inspector-general of police (IGP) and three others over their alleged failure to locate her ex-husband, who absconded with their daughter.

A three-member bench led by judge Zaini Mazlan unanimously ruled that the application did not meet the threshold required for the court to exercise its discretion to admit new evidence.

The proposed evidence relates to the alleged use of Budi95 and the RM100 Rahmah Necessities Aid (Sara) by her ex-husband, Riduan Abdullah, formerly known as K Pathmanathan.

Zaini, who sat with Faizah Jamaludin and Radzi Abdul Hamid, said the evidence was not available during the High Court trial and only surfaced after the proceedings had concluded.

He said that, in such circumstances, the first condition under Rule 7(3A)(a) of the Rules of the Court of Appeal 1994 had been fulfilled, as the evidence was not available and could not have been obtained with reasonable diligence, given that the programmes (Budi95 and Sara100) only came into existence after the trial.

“The evidence sought to be introduced relates to events that occurred well after the conclusion of the trial in the High Court and after the hearing of the appeal before this court. It is therefore evidence of subsequent events.

“The fresh evidence, even if true, does not contradict any finding of fact made by the High Court, nor does it undermine any premise upon which the decision was reached.

“The further evidence that the appellant intends to adduce is not based on events that occurred before Jan 27, 2020. Therefore, we dismiss the application with no order as to costs,” he added.

Zaini then fixed April 24 for case management to set the date for the decision on the main appeal.

Lawyer Rajesh Nagarajan represented Indira, while senior federal counsel Liew Horng Bin appeared for the IGP, the police, the Home Ministry and the government.

Tort of nonfeasance

Indira is appealing against the decision of the Kuala Lumpur High Court that dismissed her lawsuit seeking a declaration that the IGP has committed a tort of nonfeasance in public office over the failure to execute the committal warrant against Riduan as ordered by the Ipoh High Court.

She also wants a declaration that the other three respondents are vicariously liable for the tort of nonfeasance committed by the IGP, and for compensation in the form of general, aggravated and exemplary damages.

Riduan took away his daughter, Prasana Diksa, when she was 11 months old, shortly after the former converted to Islam.

In 2009, Riduan unilaterally converted his three children to Islam without Indira's consent before going to the Syariah Court to obtain custody of the children, but in 2018, the Federal Court ruled the unilateral conversion of the three children null and void.

In 2010, the Ipoh High Court granted full custody of the children to Indira.

In May 2014, the civil High Court in Ipoh issued a committal order for Riduan to be arrested for contempt of court over his failure to return Prasana to Indira, and also issued a recovery order by directing the police to find the child.

Indira subsequently obtained a mandamus order in the High Court in September 2014, which compelled the IGP to enforce the two court orders.

The Court of Appeal later dismissed the mandamus order, and the Federal Court in April 2016 restored the mandamus order for Riduan’s arrest.

- Bernama