( 1 ) HEARD Mr. Mrugan K Purohit learned counsel for the petitioner and Mr. I M Pandya learned APP for the respondent State.

( 2 ) MR. PUROHIT submitted that the respondent- husband Dineshbhai Premjibhai Kapadia though served through the court has not appeared.

( 3 ) HAVING considered the reasonings advanced by the learned JMFC, Jasdan for rejecting the application filed by the petitioner wife under section 125 (3) of Cr. P. C. , the court is of the view that the finding recorded by the learned Magistrate is erroneous being misconceived.

( 4 ) IT is true that for non payment of the amount the husband was once sent to jail and therefore, he cannot be again sent to jail being a defaulter of the very amount during execution proceedings for the recovery of the amount. But as per the ratio of the decision in the case of Smt. Kuldip Kaur vs. Sureinder Singh and anor. reported in AIR 1989 SC 232 it has been held that" A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a mode of enforcement It is not a mode