ORDER :

1. The petitioner has filed the present writ petition under Article 227 of the Constitution of India assailing the order dated 15.12.2023 passed by the learned Family Court, Korba in Civil Suit No. 71-A/2017 in case of (Mamta Das vs. Shyamal Mallick) by which the learned Family Court has rejected the application filed under Order 7 Rule 10 CPC filed by the petitioner regarding maintainability of Civil Suit under Section 34 of the Specific Relief Act before the Family Court.

2. Brief facts reflected from the record are that the respondent No1. and 2 have filed a civil suit under Section 34 of the Specific Relief Act claiming decree of declaration be granted and plaintiff No.2 be declared as illegitimate daughter with the relationship of plaintiff No.1 and defendant mainly contending that the plaintiff No.1 and defendant No.1 are practicing lawyers in the District Court in District Korba. The defendant No.1 has started making physical relationship with plaintiff No1 and when she became pregnant the defendant No.1 forced her for abortion which has compelled her to lodge a complaint before Superintendent of Police Korba and because of thereat she left Korba and started living at Champa where plaintiff No.2 was born. It has also been contended that on the basis of the complaint made by the plaintiff offence under Section 376 IPC has been registered against the defendant No.1. The defendant No.1 has allured her not to lead the evidence in the case so that he will look after the plaintiff No.1 and 2 and give them entire respect. On the basis of his assurance, she has led the evidence in favour of the defendant No.1 and accordingly, the defendant No.1 was acquitted on 12.10.2007. Thereafter, the defendant No.1 stated denying his responsibility and alleging that the plaintiff No.2 was not born from their relationship of plaintiff No.1 and the defendant.

3. It is also contended that when the plaintiff moved an application under Section 125 CrPC for grant of maintenance with regard to plaintiff No.1 and 2, it has been alleged by the defendant that plaintiff No.2 is not his daughter. Accordingly, the application was rejected. This order was assailed before the Court by filing Criminal Revision No. 179 of 2012 and on 04.02.2013 it is still pending for consideration. This court vide order dated 04.12.2013 has observed that revision/petitioner can file a suit for declaration under Section 34 of the Specific Relief Act for getting a declaration regarding status of plaintiff No.2 as an illegitimate child of respondent herein but so far as permission for getting DNA test the same cannot be given in this revision petition.

4. It has also been contended that since the matter was pending therefore, the defendant started providing facilities to the plaintiff No.1 but he was not treating the plaintiff No.2 as his daughter. It has also been assured by him that defendant intended to marry his daughter which may create hindrance as such he assured plaintiff No.1 that after marriage of his daughter he will recognize plaintiff No.2 as his daughter but he has not fulfilled his assurance which compelled her to file present suit.

5. The record of the case would demonstrate that the defendant No.1 has also moved an application under Order 7 Rule 11 CPC before the learned Family Court on 04.05.2018 which was decided by the learned Family Court on 04.09.2018 by observing that after filing the application filed by the defendant regarding maintainability of the case, the plaintiff has moved an application for amendment and has sought relief of deleting relief No. (b) and (c) of clause 16 of the plaint. The learned Family Court has also recorded its finding that the relief sought in paragraph 16 (a) is within the frame work of law, as such the suit is maintainable. Accordingly, the learned Family Court has rejected the application under Order 7 Rule 11 CPC and fixed the case for framing of the issues.

6. The said order was challenged before this Court wher