JUDGMENT :

Sangeet Lodha, J.

1. This appeal is directed against order dated 17.9.18 passed by the Family Court, Udaipur, in Case No. 492/17, whereby an application preferred by the appellant under Section 12 of Guardians and Wards Act, 1890 (for short "the Act"), seeking interim custody of the female child or visitation rights as non custodial parent, has been dismissed.

2. The facts relevant are that the appellant and the respondent entered into wedlock on 26.5.02. After marriage, they lived together at Udaipur and were blessed with a baby girl on 22.9.12. On account of disputes and differences being developed, they started living separately w.e.f. 11.11.15.

3. The respondent-wife lodged one after another three FIRs against the appellant; FIR No. 101/16 for offences under Sections 498A, 406 IPC at Mahila Police Station Udaipur, FIR No. 354/16 for offences under Sections 420, 406, 467, 468 & 120B IPC at Police Station Sukher, Udaipur and FIR No. 255/16 for offences under Sections 420, 406, 467, 468, 120B IPC at Police Station, Govardhan Vilas, Udaipur. The respondent-wife also filed an application under Section 125 Cr.P.C. seeking maintenance for herself and daughter Pearl a sum of Rs. 70,000/- and Rs. 30,000/- respectively, which is being contested by the appellant by filing a reply thereto.

4. According to the appellant, the respondent left the matrimonial home on 11.11.15 and also forcibly took away the baby girl Pearl with her. The appellant filed an application under Sections 7 & 25 of the Act on 22.11.17 before the Family Court, Udaipur accompanied by an application under Section 12 of the Act, claiming either interim custody or visitation rights to the child.

5. The application has been rejected by the Family Court by the order impugned observing that as laid down by the Supreme Court, the interest and welfare of the child is of paramount consideration in the matter of grant of custody and since there are allegations of appellant's being involved in commission of the offences and he is alleged to have treated the respondent-wife with cruelty, taking into consideration the overall interest of the child who is studying in Class III and being brought up by her mother, he is not entitled for interim custody as prayed for. The prayer of the appellant for visitation rights has not been considered by the Family Court while passing the order impugned. Hence, this appeal.

6. During the pendency of the appeal, a Bench of this Court of which one of us was member, conferred with the appellant, respondent and the child Miss Pearl in Chamber, however, the efforts made for amicable settlement between the parties failed and therefore, the matter is taken up for consideration on merits.

7. Learned counsel appearing for the appellant submitted that by way of an application under Section 12 of the Act, the appellant had prayed for only visitation rights, however, the Family Court has dealt with the application filed as an application seeking interim custody and the prayer of the appellant claiming visitation rights has not even been considered. Learned counsel submitted that every child has fundamental right to get love and affection from both parents and thus, the respondent cannot deny the appellant visitation rights to the child altogether. Drawing the attention of this Court to the order impugned passed by the Family Court, learned counsel submitted that while deciding the application preferred by the appellant, the Family Court has not assigned any reason as to why the appellant does not deserve to be extended limited visitation rights to his own daughter, who is living with the mother on account of differences having been developed between the parties. Learned counsel submitted that both mother and father have equal rights over the child and equally responsible and concern with the welfare of the child. It is submitted that for healthy emotional development of the child Pearl, it is essential that she gets care, love and affection from both