The Cochin Makkathayam Thiyya Act, 1940 Complete Act - Bare Act

Whereas it Is expedient to define, regulate and amend the law of marriage, maintenance, guardianship, inheritance and succession of the Makkathayam Thiyyas; It is hereby enacted as follows:-

This Act may be called the Cochin Makkathayam Thiyya Act. XVII of 1115, and it shall come into force at once.

It shall apply to all Thiyyas domiciled in Cochin except the Chittur Taluk who follow Makkathayam and to such Thiyyas, whether so domiciled or not, as have or shall have marital relations with them.

Nothing in this Act shall confer any right on the parties to a marriage dissolved before this Act comes into force.

Except as provided for by any other law for the time being in force, the rules herein contained shall constitute the law of Cochin applicable to all cases of intestate succession among Thiyyas.

In this Act unless there is something repugnant in the subject or context.

(i) "Thiyya" includes Ezhava. Chova, Billava, Marayam, Thandan and others recognized as such.

(ii) "Son", "Daughter" or any word which expresses relationship denotes only a legitimate relative.

When owing to any physical defect or deformity, it is not possible to ascertain the sex of any of the heirs of an intestate, such heir shall, for the purpose of this Act, be regarded as a female.

(iii) Kindred or consanguinity.- Kindred or consanguinity is the connection or relation of persons descended from the same stock or ancestor. Lineal consanguinity.- Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grand-father or great-grandfather and so upwards in the direct ascending line; or between a man, his son, grandson, great-grandson, and so downwards in the direct descending line.

Every generation constitutes a degree, either ascending or descending.

A man's father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great-grandson in the third.

Collateral consanguinity.- Collateral consanguinity is that which subsists between two persons who are descended from the same stock or ancestor, but neither of whom is descended in a direct line from the other.

For the purpose of ascertaining in what degree of kindred any collateral relative stands to a person deceased, it is proper to reckon from the person deceased to the common stock, and then downwards to the collateral relative, allowing a degree for each person, both ascending and descending.

The conjugal relation of a Thiyya male or female with a Thiyya female or male, subject to the restrictions of consanguinity and affinity recognized by the community, openly solemnised before the date on which this Act comes into force and subsisting on such date or so solemnized after the date on which this Act comes into force shall be deemed to be a valid marriage for all legal purposes:

Provided that no conjugal union, solemnised after the date on which this Act comes into force, shall in the case of a male who has not completed 18 years, of age or of a female who has not completed 14 years of age, be deemed to be a legally valid marriage.

Conjugal union may be openly solemnised in any of the following ways:-

(a) by the tying of Mangalya the Suthram.

(b) by the presentation of cloth to the female by the male,

(c) by exchange of rings,

(d) by mutual garlanding; and

(e) by mutual consent evidenced by a registered instrument attested by not less than two witnesses.

Whoever, being a male above 18 years of age, solemnises a marriage declared invalid under Section 6 shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to Rs. 500 or with both

Where, after the date of this Act, a marriage declared invalid under Section 6 is solenmised by a minor, any person having charge of such minor, whether as parent or guardian or in any other capacity, who does any act to promote the marriage, or permits it to be solemnised shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to Rs. 500 or with both.

No Court

other than that of the District Magistrate shall take cognisance of or try any offence under Sections 7 and 8.

No Court

shall take cognizance of any offence under Sections 7 and 8 save upon a complaint made within one year of the commission of such offence.

The subsequent marriage of a male or female during the continuance of a prior marriage and performed after the commencement of this Act is void.

A polyandrous marriage performed after this Act shall be void.

Marriage is dissolved only in one of the following ways-

(i) by the death of either party.

(ii) by mutual consent evidenced by a registered instrument attested by not less than two witnesses, and

(iii) by a formal order of dissolution as hereinafter provided.

A husband or wife, but not any person as the next friend of a minor wife, may present a petition for dissolution of the marriage under section 13, Clause (iii) in the Court of the District Munsiff, within the local limits of whose jurisdiction the respondent resides, carries on business, or personally works for gain or if the respondent resides, carries on business or personally works for gain in any place outside Cochin, in the Court of the District Munsiff within whose jurisdiction the petitioner resides or the marriage was solemnised; and where the petitioner is the husband, he shall be liable to pay reasonable compensation to the respondent.

What is reasonable compensation shall, in case of dispute, be determined by the Court after an enquiry into the position, means and circumstances of the parties, but without going into the grounds of the proposed dissolution, and it shall in no case exceed Rs. 2,000.

A copy of such petition as aforesaid shall be served on the respondent at the expense of the petitioner and in the manner provided for the service of summons on a defendant in the Code of Civil Procedure.

Six months after the service of the copy as aforesaid, if the petition is not withdrawn in the meantime the Court shall declare, in writing, the marriage dissolved and then determine and decree the amount of compensation. The dissolution shall take effect from the date of the order declaring it.

Decree awarding compensation executable and appealable.- The order decreeing compensation shall be tantamount to a decree and shall be executable as such and shall, subject to the payment of Court Fee on the amount in dispute, be appealable under the Code of Civil Procedure.

Court shall entertain a suit for restitution of conjugal rights or for judicial separation between parties.

The wife and minor children, except married minor daughters under the guardianship of their husbands, shall be entitled to be maintained by the husbands or the father as the case may be.

Provided that the wife shall not be entitled to maintenance if she refuses to live with the husband without just cause.

The husband shall be the legal guardian of his minor wife and the father of his minor children other than married daughters under the guardianship of their husbands and of his grand-children by his widowed minor daughters in respect of their person and property.

Where the wife has minor children by a former husband, deceased, she shall be the legal guardian in respect of their person and property.

A Thiyya of sound mind, not being a minor, may dispose of by will, in writing the whole of his or her property and may appoint an executor or executors to administer the will.

Succession to immovable property situated in Cochin and belonging to a Thiyya is regulated by this Act wherever he may have had his domicile at the time of his death.

Succession to the movable property of a deceased. Thiyya is regulated by the law of the country in which he had his domicile at the time" of his death.

If a Thiyya dies leaving movable property in Cochin, in the absence of proof of any domicile elsewhere, succession to the property is regulated by this Act.

For the purpose of succession there is no distinction between those who were actually born in the life-time of a person deceased and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive.

For the purpose of succession there is no distinction between the self-acquired property and the ancestral property or between the property of a male and that of female except as otherwise provided by this Act.

A man is considered to the intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.

Property in respect of which a Thiyya has died intestate devolves upon the wife or husband or upon those who are of the kindred of the deceased, in the order and according to the rules herein prescribed.

Where the intestate has left more than one widow, the distribution of inheritance referred to in Sections 30, 31, 32 and 33 shall be made as if there is only one widow, all the widows together taking equally only one widow's share.

Where the intestate has left a widow, if he has also left a son, or lineal descendant of a son, a share equal to that of a son shall belong to the widow.

Where the intestate has left a widow, if he has also left lineal descendants, but no son or a lineal descendant of a son, a share equal to that of a daughter shall belong to her.

If the intestate has left no lineal descendants but has left his father or mother or paternal grandfather, or any lineal descendants of his father or paternal grandfather one half of his property shall belong to the widow.

If he has left none of the kindred referred to in Sections 31 and 32 the whole of his property shall belong to the widow.

The husband surviving his wife has the same rights in respect of her property if she dies intestate, as the widow has in respect of her husband's property, if he dies intestate.

Where the intestate has left no widow, his property devolve on his lineal descendants, or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained.

The rules for the distribution of the intestate's property (after deducting the widow's share if he has left any widow) among his lineal descendants are as follows:-

Every lineal descendant of the intestate who survives him excludes from inheritance of his own descendants.

If the intestate has left surviving him only one lineal descendant not excluded by the operation of the preceding section, the property shall belong to him.

If the intestate has left more than one such lineal descendant, they shall divide the inheritance as follows:-

(a) If all of them are the sons of he intestate, or if all of them are his daughters, equally.

(b) If some of them are his sons and others are his daughters, each daughter shall take a half of the share of a son if the intestate is a male, and if the intestate is a female all children shall take equally.

(c) If some or all of them are related to him more remotely than in the first degree, the property shall be divided into such a number of shares as shall correspond with the number of his children who either survived the intestate or died before the intestate leaving lineal descendants surviving the intestate; the shares so allotted shall bear the same ratio to each other as if such children had all survived the intestate; the children of the intestate, if any, who survived him, shall take the shares so allotted to them; the share of each of the remaining children shall be divided among his or her lineal descendants per stirpes and in such manner that the share allotted to a female who either survived the intestate or died before him leaving lineal descendants surviving him, shall be equal; to that of each of such her sisters and a half of each of such her brothers, if the intestate is a male, and equal to that of her brothers and sisters if the intestate is a female, and the share allotted to a male, who either survived the intestate or died before the intestate leaving lineal descendants surviving the intestate shall be equal to (hat of such his brothers, as either survived the intestate or died before the intestate, leaving lineal descendants surviving the intestae.

Where the intestate has left no lineal descendants the rules for the distribution of his property (after deducting the widow's share, if he has left a widow) are as follows:-

If the intestate's father and mother are living they shall take equal shares of the property. If one of them only is living, he or she shall take the whole.

If the intestate's parents are dead, the property shall be inherited by the lineal descendants of the father in the same manner as it would if the father survived him and died intestate immediately after, leaving no widow.

If the intestate's parents are dead, and there are no lineal descendants of the father, the property shall go to the paternal grand-parents of the intestate in equal shares. If one of them only is living he or she shall take the whole.

If the intestate's paternal grandparents are dead, the property shall be inherited by the lineal descendants of the paternal grandfather in the same manner as if the paternal grandfather survived the intestate and died intestate immediately after, leaving no widow.

Where the intestate has left no widow nor any kindred capable of inheriting under the preceding rules, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.

Notwithstanding anything herein contained to the contrary, illegitimate children or their lineal descendants are entitled to inherit the property of their mother, subject to the share which devolves on her husband if any as if they were legitimate.