JUDGMENT :

Goutam Bhaduri, J

1. The present appeal is against the judgment and decree dated 07.10.2017 passed by the First Addl. Principal Judge, Family Court Durg whereby the suit for declaration that the plaintiff is not the biological father of the defendant was dismissed.

2. According to the plaint, on a report being made by mother of respondent, a sessions case was registered against the appellant u/s 376 of IPC wherein he was acquitted. At the time of birth of the child Dhanush Lal, the name of plaintiff Chummanlal Sahu (appellant herein) was got recorded as father. The appellant contended that he never had physical relations with the mother to whom child Dhanush Lal was born. As such, the plaintiff cannot be declared to be a biological father of Dhanush Lal Sahu and declaration was sought for to that effect.

3. The defendant(s) filed their written statement and stated that in Sessions case registered under Section 376 IPC, certain compromise was effected and the prosecutrix was examined before the Court wherein she made a statement in favour of the plaintiff, therefore, the plaintiff was acquitted. During the cross examination before the Court in the said criminal case, when a question was posed to her as to whether she is ready and willing to go with the plaintiff if the accused plaintiff marries and keeps her as wife, she answered that she is ready and willing to marry the plaintiff but the marriage should be in the Court. In the said case, during the statement made of accused u/s 313 of CrPC, the appellant/ plaintiff also stated that if the complainant wants to marry and stay with him, then he is ready and willing to keep her. In the written statement, it is further contended that the birth of child Dhanush is an outcome of physical relations developed between the plaintiff and mother of respondent, therefore, the name of plaintiff got recorded in the birth certificate. The learned family Court dismissed the suit of the plaintiff. Hence, this appeal.

4. Learned counsel for the appellant would submit that there is no evidence on record that at any point of time, the mother of the defendant was in relation with the plaintiff appellant. He therefore submits that in absence of any evidence showing physical relations between the plaintiff and mother Durpat Bai, the Court below ought to have passed a declaratory decree and only on the basis presumption, the inference cannot be drawn that the plaintiff is biological father of Dhanush Lal Sahu.

5. No representation is made on behalf of the respondent despite repeated calls.

6. We have heard learned counsel for the appellant and have also perused the evidence of the plaintiff Chummanlal Sahu. In the cross examination of the plaintiff, he admits that a case u/s 376 IPC was registered against him in the year 2009 and before he was arrested, child Dhanush was born. It was further admitted that after birth of Dhanush, a meeting was held between the parents of the plaintiff and parents of the girl and subsequently during Chhatti ceremony of child, his parents sent clothes and other ornaments etc. He further admitted that after Chhatti programme that is after birth of the children, the mother of child came to his house. Thereafter some dispute took place. He denied to have given any contrary statement during the course of evidence of accused recorded in sessions case to the effect that he was ready and willing to marry and keep the mother of respondent. He further denied to have given any answer to question no.32 during the cross examination of accused to the effect that he is ready and willing to marry and keep the complainant with him if she wants to marry and stay with him, therefore, he be acquitted. The birth certificate was marked as Ex.P-1 wherein the name of child Dhanushlal, and the name of Chumman Lal stand recorded along with the name of mother.

7. In the Statement of D.W.1, she has deposed that on the pretext of marriage, the plaintiff developed physical relations with her but