Can a defaulter be sentenced to undergo rigorous imprisonment under Section 125(3) Cr.P.C for non payment of maintenance? Does the expression "imprisonment" in Section 125(3) Cr.P.C take within its sweep rigorous imprisonment also? These are the questions of law that are raised in this

R.P.F.C.

2. To the crucial andvital facts first: the petitioner who is undergoing imprisonment now had suffered an order under Section 125 Cr.P.C to pay maintenance to the claimants. He did not pay such amounts and this obliged the Family Court to initiate proceedings against him under Section 125(3) Cr.P.C. The amount remained unpaid. By the impugned order passed under Section 128 Cr.P.C, for the default committed in payment of maintenance for the period of twelve months the petitioner was sentenced to undergo rigorous imprisonment for a period of twelve months. The amount earned as wages was directed to be paid to the claimants.

3. The learned counsel assails the impugned order on two specific grounds. First of all, it is contended that the order passed is too harsh and insensitive inasmuch as the petitioner has been sentenced to undergo imprisonment for a period of 12 months for the default which is the maximum period to which a defaulter can be sentenced. Leniency must, at any rate, have been shown. It must be remembered that the petitioner is now forced to undergo imprisonment only because of his genuine difficulty to raise the amount for discharging the liability, contends counsel.

4. It is next contended that imposition of rigorous imprisonment is impermissible under Section 125

(3) Cr.P.C. At any rate, prescription that the imprisonment must be of the graver variety - rigorous, is not justified in the facts of this case.

5. It will be appropriate straight away to refer to Section 125(3) Cr.P.C which I extract below:

"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 months (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] 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:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another, woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him."

(emphasis supplied)

6. Section 125(3) Cr.P.C confers on the court the power to "sentence a person to imprisonment" for the default that remains after execution of the warrants. The first question that arises for consideration is whether the sentence so imposed is a punishment or not; because that must help the court vitally to decide the crucial question.

7. It has been held clearly and categorically by the Supreme Court that the default sentence imposed is only a mode of enforcement of the amount due and it is not punishment in the sense in which the term is ordinarily understood. Though Section 125(3) Cr.P.C employs the expressions "sentence" and "imprisonment", such liability to undergo imprisonment cannot be held to be a punishment as contemplated under Section 53 of the Indian Penal Code.

8. Thedecision of the Supreme Court in Kuldip Kaur v. Surinder Singh [AIR 198