JUDGMENT :

SANJAY GOWDA, J.

1. Though this appeal is listed to hear I.A.1/2020 which has been filed seeking condonation of delay of 29 days in filing the appeal, on disposal of the said application and with the consent of learned counsel on both sides, it is heard finally.

2. This is an appeal by the plaintiff/husband.

3. The correctness of the judgment dated 09.10.2019 passed in O.S.No.54/2018 by the VI Additional Principal Judge, Family Court, Bengaluru, is called in question in this appeal.

4. The plaintiff filed a suit seeking for a declaration that his marriage with the defendant, which was solemnized on 19.10.2016 at PSB Hall, W-586, School Road, near SBOA School (CBSE), Annanagar Western Extension, Chennai – 600 101, was void ab initio and non-est in law. A declaration was also sought that a decree of divorce was unnecessary.

5. It was contended that the plaintiff is a Hindu, while the defendant is a Christian and both of them had not been converted and continue to profess their respective faiths. It was stated that they got to know each other over a period of time and ultimately decided to marry. The marriage was, however, not registered.

6. After they started living together, they realized that there was incompatibility between them and they could not make the marriage work. They stated that since they were of different faiths, neither the Hindu Marriage Act, 1955 (for short, hereinafter referred to as ‘the Act’) nor the Indian Christian Marriage Act, 1872 was applicable to them and consequently, the plaintiff was entitled for a declaration that the marriage was void ab initio.

7. The defendant/wife, though entered appearance, did not choose either to file written statement or to adduce her evidence.

8. The plaintiff got himself examined as P.W.1 and exhibited one document on his behalf.

9. The Trial Court, after hearing, proceeded to dismiss the suit on the ground that the parties had got married as per Hindu rites and customs and since the marriage was performed by following the customary rituals of Hindus, the marriage could not be declared as void ab initio.

10. The Trial Court took the view that a decree of divorce also could not be granted to the parties unless they came within purview of the provisions of the Act. The Trial Court accordingly dismissed the suit.

11. It is against the dismissal of the suit, the present appeal is preferred.

12. Learned Counsel for the appellant contended that the Trial Court could not have dismissed the suit in light of the clear enunciation of law by the Apex Court in the case of Gullipilli Sowria Raj Vs. Bandaru Pavani Alias Gullipilli Pavali – (2009) 1 SCC 714, wherein, the Apex Court had held that in order to constitute a valid marriage under the Hindu Marriage Act, necessarily, both the parties to a marriage have to be Hindus and if one of them was not a Hindu, the marriage would be an invalid marriage and even if such a marriage has been registered, the same would be void.

13. Learned counsel for the respondent did not oppose the submission of learned counsel for the appellant. In fact, learned counsel for the respondent has filed a memo stating that the respondent had no objection for the appeal to be allowed and the suit to be decreed as prayed for.

14. We have heard the learned counsel on both sides and perused the material on record.

15. The Apex Court in the case of Gullipilli (supra) referred to Section 5 of the Act which deals with conditions for a Hindu Marriage and held that the preamble of the Act itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindus. Section 2 of the Act which deals with the application of the Act reinforces the said proposition. Section 5 of the Act thereafter also makes it clear that a marriage may be solemnized between any two Hindus, if the conditions contained in the said section were fulfilled. The usage of the expression ‘may’ in the opening line of Section 5 does not make the said provision optional. On the other