( 1 ) BOTH the above applications arise out of the common order passed by the learned Sessions Judge Bharuch on 23-7-1987 in Criminal Revision Applications No. 71 and 72 of 1986 against the orders passed by the learned Magistrate in Misc. Criminal Applications No. 44 of 1987 and 278 of 1986 which were filed by the present petitioner Chandrikaben Navnitlal Dave who is the wife of present opponent No. 2 Harish Badrishankar Dixit. The learned Magistrate passed order on Misc. Criminal Application No. 44 of 1987 on 15-5-1987 directing the opponent No. 2-husband to undergo imprisonment for 15 days per each month of arrears of maintenance i. e. total 60 days as he has failed without sufficient cause to comply with the order of maintenance passed in Misc. Criminal Application No. 301 of 1982 dated 16 The said application was filed in respect of arrears of maintenance for the period from 16-9-1986 to 16-1-1987 i. e. for a period of four months.

( 2 ) IN the second application which was filed by the present petitioner she has claimed enforcement of the aforesaid order for a period of seven months from 17-2-1986 to 16-9-1986 and the learned Magistrate has passed the order directing the opponent-husband to undergo imprisonment for 10 days each for each month of arrears of maintenance i. e. total 70 days.

( 3 ) IN the revision applications filed by the present opponent No. 2 - husband against the said orders the learned Sessions Judge has reduced the period of imprisonment and also held that both the above sentence to run concurrently and the opponent-husband was allowed to be free for the period of imprisonment undergone by the opponent No. 2.

( 4 ) MR. A. D. Shah the learned Advocate for the petitioner in both the aforesaid applications submits that the order passed by the learned Sessions Judge is totally erroneous firstly on the ground that the learned Sessions Judge has no powers to treat the orders of imprisonment passed under Sec. 125 (3) of the Cr. P. C. to run concurrently and secondly on the ground that the learned Sessions Judge has exceeded jurisdiction in reducing the sentence without considering that the learned Magistrate has properly exercised discretion vested in him for imposing sentence of imprisonment.

( 5 ) IN support of his contention Mr. Shah submits that the order of sending defaulting husband to jail for undergoing imprisonment is not on account of conviction of any offence and therefore the provisions of Sec. 31 of the Cr. P. C. would not apply in the present case. In support of this contention Mr. Shah has placed his reliance on the judgment in the case of Jaswantsinghji Fatehsinghji Thakore v. Kesuba Harisinh Dipsinhji reported in AIR 1955 Bombay page 108 wherein it is observed as under:"the Criminal procedure Code does not make failure to maintain the wife and children punishable. What is made punishable under the Code is failure without sufficient cause to carry out the order passed by a Magistrate for payment of maintenance. . . . . . "in the said case it is further observed as under:". . . . . . . . It is true that if an order for payment of maintenance under Sec. 488 Criminal Procedure Code is not complied with the same may be executed by issue of a warrant for levying the amount due under the order in the manner provided for recovery of fines. The Magistrate who passes an order for payment of maintenance can also sentence the reason ordered to pay maintenance if he fails without sufficient cause to comply with the order to suffer rigorous imprisonment for the whole or any part of each months allowance remaining unpaid after the execution of the warrant. But the fact that the Legislature has made provision for enforcement of the order passed under sec. 488 Criminal Procedure Code for levying the amount due under it in the manner in which fines are recovered or by directing that the person who continuously disregards the order shall be liable so punishment does not convert an application for