PUTRAJAYA, Dec 17 — Hindu mother M. Indira Gandhi failed in her court bid today to compel the Inspector-General of Police (IGP) recover her six-year-old daughter after two of the three judges in the Court of Appeal here ruled in favour of the policeman.
In reading out the majority judgement, Datuk Abdul Aziz Abd Rahim dismissed the Ipoh High Court’s mandamus order to IGP Datuk Seri Khalid Abu Bakar to enforce the High Court’s orders to find and return Indira’s six-year-old child Prasana Diksa and arrest her ex-husband Mohd Ridzuan.
The mandamus order, issued in September, is essentially an instruction from the High Court to a lower court or person to carry out its statutory duty.
The order came after Khalid said that the police is caught between conflicting jurisdictions: a custody order from the civil court which granted the custody of children to Indira, while the Shariah Court’s order which favoured Mohd Ridzuan.
“The general principle of a mandamus order is to enforce public good... a mandamus doesn’t lie on the enforcement of a civil dispute,” Abdul Aziz said.
“The order cannot be issued where only the right of an individual is taken into account,” he added. Both he and fellow Court of Appeal judge Datuk Ahmadi Asnawi ruled in favour of the IGP.
Datuk Tengku Maimun Tuan Mat who held the dissenting view, said however that the Ipoh High Court judge Lee Swee Seng “did not err” in making the mandamus order.
Indira’s counsel M. Kulasegaran then pointed out that the mandamus order was issued after his client failed to locate Mohd Ridzuan.
Abdul Aziz, however, replied that Indira still has the option of hiring the court bailiff to carry out the job.
But the appellate court’s 2-1 ruling disconcerted several other lawyers in the courtroom.
“If the police are not going to do anything... the minority community is concerned... do we now have to employ private investigators or employ our own enforcement units?” Philip Koh Tong Ngee, who held a watching brief for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), asked the three judges.
For the mother of young Prasana Diksa however, today’s court decision was not a surprise.
“I’m very disappointed but I expected this judgement. I don’t know what to do now, how am I to find her?” she asked.
Five years ago, Indira was separated from her daughter Prasana Diksa, then 11-months old toddler, when Mohd Ridzuan ran off with the child.
Mohd Ridzuan later unilaterally converted all their three children to Islam and obtained a custody order in the Shariah court for all three.
In the long drawn-out child custody battle, Indira won full custody of her three children in the Ipoh High Court in 2010, with the same civil court issuing a recovery order in her favour.
Lee had also nullified the Shariah court’s custody order and subsequently issued the mandamus order compelling the IGP to act.
On May 30, the civil court also cited Mohd Ridzuan for contempt of its custody order and issued a warrant to arrest and jail him, unless he gave up the child that he had taken away in 2009.
Mohd Ridzuan’s bid to appeal against the High Court’s custody order in favour of Indira was previously dismissed in both the Court of Appeal and Federal Court.
In today’s proceeding, lawyers Andrew Khoo and Goh Siu Lin held watching briefs for the Malaysian Bar and the Joint Action Group for Gender Equality respectively.
