Non-Muslim mum will never see daughter if police do not carry out duty, says lawyer

M. Indira Gandhi may not see her youngest daughter again if the Court of Appeal ruling stays, which says the police are not legally bound to locate her. – The Malaysian Insider filepic, August 21, 2015.Kindergarten teacher M. Indira Gandhi will never get to see her youngest daughter if a Court of Appeal decision that the police are not legally bound to locate the girl is upheld, the Federal Court was told today.

Lawyer Aston Paiva said Prasana Diksa, now 7 years old, would never know her mother, Indira, who is embroiled in a custody battle with ex-husband Muhammad Riduan Abdullah.

"If the Court of Appeal ruling is upheld, the recalcitrant ex-husband will remain in contempt of court and continue to commit a criminal offence under the Child Act," he told a five-man bench led by Tan Sri Raus Sharif.

Aston was submitting Indira's appeal against the appellate court's ruling last December, which set aside her mandamus order to Inspector-General of Police Tan Sri Khalid Abu Bakar to execute a High Court order to locate Prasana Diksa and arrest Riduan.

Judges Datuk Abdul Aziz Abdul Rahim and Datuk Ahmadi Asnawi, who allowed the appeal by Khalid and the Attorney-General, said the court could not give effect to a private dispute.

The judges said Indira could only enlist the assistance of the court bailiff to locate Riduan in order to get back the child.

Aston, who is assisted by lawyer M. Kula Segaran, said recalcitrant spouses could evade their civil obligations and abduct their children from the parent having lawful custody without punishment and even insincerely converting to Islam.

"This could potentially bring the Muslim legal order and even the religion into disrepute in the eyes of multi-religious Malaysia.”

He said police could now decide when they wished to enforce the law and it promoted arbitrariness.

Aston said a judge's decision was now open to question by public officers like the police.

"The separation, exclusivity and independence of the judiciary can now be diluted by the executive," he said, adding that public confidence in the administration of justice would erode.

Federal counsel Suzana Atan said the police were in a quandary to act because there were two custody orders from the High Court and the Shariah court.

Suzana said under the Federal Constitution, both courts were of equal status and there could be no interference in the affairs of the other.

She added that the enforcement of Indira's private rights did not come within the ambit of public duties of the police under the Police Act.

On September 12 last year, High Court judge Lee Swee Seng allowed a judicial review by Indira for an order to force Khalid to arrest Riduan and return Prasana to her.

In 2009, the Shariah Court in Ipoh granted Riduan, formerly known as K. Patmanathan, custody of his three children, Tevin Darsiny, 17, Karan Dinish, 16, and Prasana Diksa, 6, after he unilaterally converted them to Islam.

The following year, the High Court in Ipoh granted Indira full custody of her three children and Riduan was ordered to return Prasana to Indira.

In July last year, Lee quashed the conversion of the children and ruled that the certificates of conversion were unconstitutional.

Lee had also cited Riduan for contempt and issued a warrant of arrest against him after he repeatedly failed to hand over Prasana to Indira.

Indira also obtained a recovery order and warrant of arrest against her ex-husband from the High Court to compel the police to locate Riduan.

The failure of the police to act resulted in her filing for a judicial review seeking the mandamus order, as Khalid was insistent that police would take the middle path in cases where disputing parties had obtained separate orders from the civil and shariah courts.

Lawyers Philip Koh Tong Ngee and Goh Siu Lin held a watching brief for the non-Muslim interfaith council and Association of Women Lawyers respectively.

The apex court deferred judgment. – August 21. 2015.