S. TAMILVANAN, J.

1. This Civil Miscellaneous Appeal has been preferred under Section 19 of the Family Court Act, seeking to set aside the order, dated 15.04.2015 passed in I.A. No. 623 of 2010 in O.P. No. 2490 of 2007 on the file of the III Additional Family Court, Chennai.

2. The appellant herein had filed the petition in O.P. No. 2940 of 2007 under Section 10 (1)(x) of the Indian Divorce Act, seeking divorce, dissolving the marriage solemnized between the appellant and the respondent herein at Chennai on 17.08.1992. Pending the said Original Petition, the appellant herein, who was the respondent in the O.P. No. 2940 of 2007, filed Interlocutory Application in I.A. No. 623 of 2010, under Section 151 of Civil Procedure Code to dismiss the main petition in O.P. No. 2940 of 2007 filed by the respondent herein on the ground that the marriage was solemnized, as per the Hindu rites and customs, hence, the said Original Petition under Section 10(1)(x) of Indian Divorce Act was not legally maintainable. The III Additional Family Court, by the impugned order, dated 15.04.2015 made in I.A. No. 623 of 2010 in O.P. No. 2940 of 2007 allowed the said Interlocutory Application in I.A. No. 623 of 2010 in favour of the respondent herein, aggrieved by which, the appellant/wife has preferred this Civil Miscellaneous Appeal.

3. Ms. Geetha Ramaseshan, learned counsel appearing for the appellant contended that the trial Court has erred in holding a view that the marriage between parties to the CMA was solemnized as per the Hindu Rites and Customs, though the appellant had filed Ex.R.1, which would establish that her marriage was solemnized only as per Indian Christian Marriage Act and the respondent herein changed his name as A.S. Paul and got married the appellant herein. The appellant is an Anglo Indian, by birth she is a born Christian throughout in her life. However, the respondent had deliberately mislead the trial Court by claiming the appellant's as Jayalakshmi, as if she is a Hindu. According to the learned counsel for the appellant, she is a Christian, whose name is Jerry Garman @ Geraldine. The said name has also find a place in the cause title of the Original Petition (OP), which shows her name clearly as Jerry Garman @ Geraldine.

4. It is further contended by the learned counsel for the appellants that the trial Court failed to consider the legal position that under Section 5 of the Hindu Marriage Act, both parties to the marriage should be Hindus to be governed under the Hindus Marriage Act. Here in this case, the appellant was not a Hindu and she had never converted to Hinduism and there is no legally acceptable evidence produced on the side of the respondent herein to show that she had conversion from Christianity to Hinduism, however, the Court below has taken a wrong view and decided, as if the marriage was solemnized under Hindu Marriage Act.

5. Per contra, Mrs. Bhavatharini, learned counsel appearing for the respondent submitted that the trial Court, rightly held that the petition filed by the appellant, seeking divorce was not maintainable. Challenging the said order, the appellant herein had filed C.R.P. No. 3230 of 2011 before this Court and when the said matter was taken up, this Court (R.S. Ramanathan, J.) passed an order, dated 04.09.2012 that the Family Court should take up the preliminary issue and decide whether the petition filed by the respondent herein could be maintainable or not. Learned counsel further submitted that from 1986 the appellant and the respondent herein were living together and as the appellant had insisted, that to have the marriage solemnized in any one of the forms, the respondent got married the appellant as per the Hindu rites and customs, in the presence of his family members and relatives.

6. In this regard, we are of the view that, it is relevant to extract Section 5 of Hindu Marriage Act, 1955, which reads as follows:-

"Conditions for a Hindu marriage – A marriage may be solemnized