The sentence imposed under Section 125(3) Cr.P.C. is only a mode of enforcement of the direction to pay maintenance and not a punishment. The liability to pay maintenance is not discharged by imprisonment, and the purpose of imprisonment is to enforce the order, not to wipe out the liability.

1. Petitioner-husband has preferred these two separate revision petitions under Section 397/401 Cr.P.C. to challenge impugned orders of even date, i.e. on 07.12.2015, passed by Judge, Family Court, Churu.

2. In Criminal Revision Petition No. 130/2016, the order which was passed by learned Court below on respondent’s application under sub-section (3) of Section 125 Cr.P.C. for recovery of arrears of maintenance to the tune of Rs. 92,250/- the learned Court below has handed down sentence of six months’ simple imprisonment to the petitioner by taking shelter of Section 67 of the IPC. Likewise, in Criminal Revision No. 131/2016, learned Court below, upon consideration of identical application of the respondent under sub- section (3) of Section 125 Cr.P.C. for recovery of maintenance of arrears to the tune of Rs. 20,250/- has handed down sentence of three months’ simple imprisonment to the petitioner yet again resorting to Section 67 IPC.

3. It is argued by learned counsel for the petitioner that, while passing the impugned order in both the revision petitions, learned Magistrate has seriously erred in construing sub-section (3) of Section 125 Cr.P.C. Learned counsel further submits that under sub-section (3) of Section 125 Cr.P.C. Court is not empowered to pass any order for imprisonment beyond a period of one month. Learned counsel has also contended that learned Court below has seriously erred in invoking Section 67 IPC for handing down sentence of six months and three months respectively in both the cases, inasmuch as, non-payment of maintenance allowance cannot be equated with non-payment of fine. In support of his arguments, learned counsel has placed reliance on a decision of Supreme Court in case of Sahada Khatoon and Others vs. Amjad Ali and Others, 1999 Cri. L.J. 5060. Supreme Court, while considering rigor of sub-section(3) of Section 125 Cr.P.C. observed that the power under the aforesaid provision is circumscribed and therefore a Magistrate cannot impose imprisonment to a term which may extend to one month or until the payment, if sooner made. The Court held:-

“Sub-section (3) of Section 125 Cr.P.C. circumscribes the power of a Magistrate to impose an imprisonment to a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month for breach of non-compliance of the order of Magistrate the wife can approach again the Magistrate for similar relief. The Apex Court further observed that by no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month.”

4. The same view is also reiterated by this Court in the cases of Suresh vs. State of Rajasthan and Others, 2005 (3) R.Cr.D. 35 and Sunil Kumar Jain vs. State and Another, 2005 W.L.C. (Raj.) UC 482.

5. Per contra, learned counsel for the respondents has opposed the revision petitions.

6. I have considered the submissions made at the Bar and perused both the impugned orders.

7. For examining legality and propriety of the impugned orders, it would be just and appropriate to see the nature of sentence passed by a Court under Sub-section (3) of Section 125 Cr.P.C. which reads as under:

“(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 allowances 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 condi