The main legal point established in the judgment is the need for strict construction of S. 125(3) of the Cr.P.C. and the requirement to exhaust the modes prescribed under S. 421 before sentencing a defaulter to imprisonment for failure to comply with maintenance orders.

This is an application filed under Section 482 of the Cr.P.C. by a husband who has been sent to jail for his failure to pay maintenance awarded by the Judicial First Class Magistrate, Adoor, in M.C. No. 47/77, in favour of his wife, the first respondent herein and their minor child. On an application filed by the first respondent claiming maintenance against the petitioner herein, the Sub-Divisional Magistrate, Adoor, awarded maintenance at the rate of Rs. 120/- per mensem to the first respondent and Rs. 75/- per mensem to the minor child. The petitioner was an employee in Kodumon plantation. The petitioner committed default in payment of the maintenance awarded in favour of the first respondent and the minor child. On April 4, 1979 an application was filed by the first respondent alleging that maintenance for the period from 9-8-1978 to 9-1-1979 amounting to Rs. 975/- was in arrears and therefore, a warrant should be issued against the petitioner. The learned Magistrate as soon as he received this application issued a warrant of arrest against the petitioner returnable on 6-6-1979. On 6-6-1979 a non-bailable warrant was issued returnable on 20-6-1979 and finally the petitioner was arrested and produced before the Magistrate on 16-8-1979, when the Magistrate straightway sent him to jail to suffer imprisonment for a period of 5 months for having committed default in payment of maintenance allowance for a period from 9-8-1978 to 9-1-1979. It is this order that is challenged before this Court by the learned advocate appearing for the petitioner on various grounds.

2. The counsel submitted that the order is one without jurisdiction, thoroughly illegal inasmuch as it is in flagrant violation of the salutary provisions in sub-section (3) of Section 125 of the Cr.P.C., 1973, hereinafter called the Code; and that the learned Magistrate has also denied natural justice to the petitioner by not issuing a notice before issuing the warrant for arrest. The learned advocate appearing for the first respondent very strongly supported this order contending that it is left to the option of the Magistrate to issue a warrant for arrest of the defaulter in the first instance itself and that it is not a condition precedent that before issuing such a warrant he should proceed in accordance with the provisions in S. 421 of the Code.

3. The decision on the point in dispute depends on a proper construction and correct understanding of sub-section (3) of S. 125, which reads.

"(3) If any person so ordered fails without sufficient cause to comply with the order. any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due."

Although this is a piece of social legislation intended to prevent vagrancy and poverty of destitute or deserted wives, children and parents, the particular sub-section is one which affects the liberty of a citizen. This is an extraordinary remedy given to a party in whose favour a monthly allowance for maintenance has been awarded. Ordinarily a sentence of imprisonment is imposed only on an offender who has been found guilty and convicted of an offence. Failure to pay monthly allowance awarded by a court of law whether willfully or otherwise is not an offence. S. 421 of the Code speaks of an offender who has been sentenced to pay a fine. An extraordinary power has been given to a Magistrate under sub-Section (3) of S. 125 to sentence a person to imprisonment although he has not committed any offence or has n