The tussle over Rayappan Anthony's body between his family and the Selangor Islamic Affairs Council (Mais) has been referred to a higher court by the Syariah High Court today.

In making the decision, High Court judge Abu Zaky Mohammad said his court had no jurisdiction to hear the case and set Dec 12 for the case to be heard by the appellate court.

Rayappan's widow M Mary Lourdes, 69, and three daughters are staking claim over the body, claiming that he had died as a Catholic.

The lower syariah court had earlier ruled on Friday - based on Mais' documentary evidence - that Mais had the right over the body.

However, on Monday Mais took it upon itself to apply for a review of the decision in the Syariah High Court on the grounds that Rayappan's family too should be allowed to give evidence.

Subsequently, the Syariah High Court first invited Rayappan's family to do so, and then issued subpoenas to get them to come but they refused on both occasions, saying that they were not subjected to syariah jurisdiction.

This failure to get the family to testify on Rayappan's religious belief today left the judge with no choice but to push the matter up to the syariah appellate court.

Civil court proceeding

Rayappan, 71, who died last Wednesday after a long illness, was born a Roman Catholic, but converted to Islam in 1990 when he took a Muslim woman as his second wife.

Under Malaysian law, non-Muslims must first convert to Islam before they can marry Muslims.

In 1996, Rayappan renounced Islam and went back to Mary and his children, his family and lawyers said.

When Islamic religious authorities last week tried to claim his body from Kuala Lumpur Hospital morgue to bury him as a Muslim, it triggered a confrontation with the family.

Mais then referred the matter to the Shah Alam Syariah Court which ruled on Friday that Rayappan - or Muhammad Rayappan Abdullah - must be buried according to Islamic rites.

The family, in the meantime, filed a civil suit with the Kuala Lumpur High Court on Monday against the government and the hospital, seeking a declaration that Rayappan was a Christian and that his body should be released to the family.

The matter will be heard on Dec 11 - one day before the Shah Alam syariah appellate court hears the Mais application.

Rayappan's family has also lodged a police complaint yesterday of harassment over the subpoenas by the Syariah High Court.

According to the police report, three religious enforcement officers and two police officers came to Rayappan's house on Monday night to serve subpoenas to his three daughters - Mary, 45, Josephine, 44 and Jayamary, 42 - to appear before the Syariah High Court.

AG asked to interfere

Mary's lawyer A Sivanesan argued that National Registration Department documents indeed showed that he was stated as a Christian.

Sivanesan ( left ) also reiterated that Mary and her children were firm in their decision not to attend any proceedings at the syariah courts.

"I have been told that they will only obey decisions made by the civil courts," he said.

The latest twist in the matter came through a telephone call from the Attorney-General's Chambers to Sivanesan this evening, requesting the family to submit to the syariah jurisdiction.

"They want me to bring the family members and the pastor who baptised him to the syariah court," he told malaysiakini .

"I said no way. They cannot force the family to succumb to their law because non-Muslims are not subjected to syariah law," he added.

In another development, Prime Minister Abdullah Ahmad Badawi had asked attorney-general Abdul Gani Patail to personally interfere in this case and if Rayappan was found to be a Christian, he should be buried accordingly.

"If the AG's Chambers finds he is not a Muslim, his body should be returned to his family," he told reporters.

While the two courts battle it out on where to bury Rayappan - Muslim or Christian cemetery - his body remains at the Kuala Lumpur Hospital morgue.

The case echoes that of M Moorthy, a Hindu mountaineering hero buried last year as Muslim by Islamic authorities over the protests of his wife, who said he had never converted to Islam.