JUDGMENT

Altamas Kabir, J. —

1.The only question which falls for determination in this Civil Appeal by way of Special Leave is whether a marriage entered into by a Hindu with a Christian is valid under the provisions of the Hindu Marriage Act, 1955.

2.The appellant, who is a Roman Catholic Christian allegedly married the respondent, who is a Hindu, on 24.10.1996, in a temple only by exchange of ‘Thali’ and in the absence of any representative from either side. Subsequently, the marriage was registered on 2.11.1996 under Section 8 of the Hindu Marriage Act, 1955, hereinafter referred to as the “1955 Act”.

3.Soon thereafter, on 13.3.1997, the respondent-wife filed a petition before the Family Court at Vishakapatnam, being O.P. No.84 of 1997, under Section 12(1)(c) of 1955 Act, for a decree of nullity of the marriage entered into between the parties on 24.10.1996 on the grounds mentioned in the said petition.

4.The main ground for declaring the marriage to be a nullity was mainly misrepresentation by the appellant regarding his social status and that he was a Hindu by religion, although it transpired after the marriage that the appellant and his family members all professed the Christian faith. The Family Court dismissed the said petition against which an appeal was preferred by the respondent before the High Court, which allowed the appeal by its judgment and order dated 12.9.2002 upon holding that the marriage between a Hindu and a Christian under the 1955 Act is void ab initio and that the marriage was, therefore, a nullity.

5.A few months thereafter on 23.1.2003 the respondent married one Dr. Praveen. Thereafter, on 23.4.2003 the appellant filed a Special Leave Petition out of which the present appeal arises.

6.There is no dispute that at the time of the purported marriage between the appellant and the respondent the appellant was a Christian and continues to be so whereas the respondent was a Hindu and continues to be so. There is also no dispute that the marriage was alleged to have been performed under the Hindu Marriage Act, 1955, and was also registered under Section 8 thereof. As against the above, a novel argument has been advanced on behalf of the appellant, the substance whereof is that the Hindu Marriage Act, 1955 does not preclude a Hindu from marrying a person of some other faith. In order to assist the Court in regard to such a submission, the Court had requested Mr. U.U. Lalit, learned Senior Advocate, to assist the Court in the matter.

7.Mr. Lalit firstly took us through the provisions of Section 5 of the 1955 Act which prescribes the conditions for a Hindu marriage. The opening words of Section 5 are as follows:

“A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :...”

8.Mr. Lalit submitted that the use of the word ‘may’ in the opening words of Section 5 seems to indicate that the conditions were not mandatory and that as a result, the said conditions would not be binding on the marriage performed between the appellant and the respondent.

9.Mr. Lalit then took us through the provisions of Section 11 of the 1955 Act, which deals with void marriages and indicates as follows :

“11.Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5.”

10.Mr. Lalit submitted that none of the conditions, as indicated in Section 11, apply to the facts of this case and as such the marriage between the appellant and the respondent could not be said to be a void marriage. According to Mr. Lalit, at best the marriage could be said to be a voidable marriage and the High Court appears to have proceeded on an erroneous footing that the marriage was ab initio void.

11.Adopting the line of submission advanced by Mr. Lalit, Mr. C. Mukund, learned co