A Magistrate can only order the detention of a person in jail for non-payment of maintenance under section 125(3) of the Code of Criminal Procedure if it is established that the person has the means to pay and still declines to comply with the order.

JUDGMENT - G.M. KHANDEKAR, J.:---By this writ petition under Article 227 of the Constitution of India read with section 482 of the Criminal Procedure Code the petitioner seeks to challenge the order dated 15th May, 1982 passed below Exh. 11 Recovery Application No. 180 of 1980 pending on the file of the Judicial Magistrate, First Class, Nasik.

2. It is common ground that the present respondent No. 1 is legally married wife of the petitioner while respondent Nos 2 and 3 are her minor sons born to her from him. The present respondents Nos. 1 to 3 had filed Misc. Application No. 30 of 1970 in the Court of Judicial Magistrate, First Class, Nasik for maintenance against the petitioner under section 488 of the Code of Criminal Procedure. After enquiry the learned Magistrate awarded maintenance to respondent No. 1 at the rate of Rs. 60/- per month and respondents Nos. 2 and 3 at the rate of Rs. 35/- per month each respectively. This application was decided by the learned Magistrate on 4th July, 1972. Thereafter the present respondents Nos. 1 to 3 preferred Misc. Applications Nos. 7 of 1972, 9 of 1973 and 17 of 1974 for recovery of maintenance amounts as per the order mentioned above and in all these cases the petitioner was sentenced to jail for a period of three months, four months and for some period respectively.

3. It is not in dispute that the amount of arrears due to respondents Nos. 1 to 3 from the petitioner had amounted to Rs. 6820/- and as the petitioner was in jail, the brother of the petitioner took pity on him and he directly settled with the respondents and executed a sale deed of 2 hectares and 4-1/2 acres out of land Survey Nos. 85 in favour of respondents Nos 1 to 3 by way of permanent settlement. Thereafter, respondent No. 1 stayed with the petitioner for a period of four years and some time in May 1979 she abandoned his company. She, therefore, again filed an application for recovery of maintenance for the period from 1st July, 1979 to May 30, 1980 in the sum of Rs. 1430 and that application was numbered as Recovery Application No. 180 of 1980. It appears that in the said proceedings the learned Magistrate passed order on 12th April, 1982 for issue of distress warrant against the present petitioner. Before any report on the said warrant was received by the learned Magistrate, respondent No. 1 filed an application on 17th April, 1982 for detention of the petitioner in jail since he had failed to pay the amount of maintenance. Say of the petitioner was obtained on that application which is at Exh. 11 and on 15th May, 1982 the learned Magistrate passed an order for issue of warrant of arrest against the petitioner and directed that he be detained in jail for a period of six months.

4. Feeling aggrieved by this order dated 15th May, 1982 the present petitioner carried Criminal Revision Application No. 118 of 1982 to the Sessions Court at Nasik. The learned Additional Sessions Judge, placed reliance on the decision of Madhya Pradesh High Court in (Bhure v. Gomatibai)1, 1981 Criminal Law Journal 789, wherein it was held that the order of imprisonment or the sentence can be passed without first issuing the distress warrant. With that finding the learned Additional Sessions Judge upheld the impugned order of the learned Magistrate and dismissed the revision petition vide his order dated 23rd August, 1982. Feeling aggrieved by this order of the learned Additional Sessions Judge as also of the learned Magistrate the petitioner has filed this petition.

5. Shri R.M. Agarwal, learned Counsel for the petitioner, pressed a legal point before me. It was submitted by him that both the courts below were in error in exercising powers under section 125(3) of the Criminal Procedure Code, when it was not established that the petitioner had means to pay the maintenance and inspite of it had failed to comply with the order passed by the Judicial Magistrate. Another argument advanced by Shri Agarwal was that issue of distress warrant wa

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