( 1 ) SECTION 125 (3) of the Code of Criminal Procedure provides for the consequences resulting from non-compliance of the order passed under S. 125 (1), Cr. P. C. , directing payment of maintenance of allowance. Where a person under such obligation to pay maintenance allowance fails, without sufficient cause, to comply with the order granting maintenance, a warrant for the recovery of the amount may be issued on an application made to the Court to levy such amount within a period of one year from the date on which it became due. If, despite such a warrant the maintenance allowance is not paid, the person may even be sentenced to imprisonment for a term which may extend to one month or until payment, if sooner made. If, however, such person offers to maintain his wife on the condition of her living with him and the wife refuses to live with him, the Magistrate may consider any ground of refusal stated by her and way make an order as aforesaid, notwithstanding such offer, if he is satisfied that there is a just ground for so doing.

( 2 ) CAN a person, suffering an order for payment of maintenance under S. 125 (1), Cr. P. C. , with no property whatsoever, be sentenced to imprisonment on his failure to pay monthly maintenance allowance, even after issuance of a warrant for levy of such amount, is a question mooted in this petition. It will, therefore, be just to quote S. 125 (3), Cr. P. C. at this stage. "125 (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 a 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; 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 wife's refusal to live with him. "the object of S. 125 (1), Cr. P. C. seems to be to compel a person, with sufficient means, to maintain his wife and other relatives mentioned in the various clauses of that Sub-Section, if such person neglects or refuses to maintain them. Before, however, an order directing payment of maintenance under this provision can be made, it has to be held that the person under the obligation to pay maintenance has sufficient means. 'means' does not signify only visible means, like real property in the shape of income, revenue or estate or a definite employment. It includes capacity to earn money. A healthy and able bodied person but without any visible or real property must be held as having means to support his wife or child. Once a person has capacity to earn, he cannot escape his liability to maintain under S. 125 (1 ). A Full Bench of the Rangoon High Court, in Maung Tin v. Ma Hmin, AIR 1933 Rang 138, held that sufficient means is not confined to pecuniary resources. This view was shared by the Nagpur HighCourt in Abdul Wahab v. Sugrabi, 1936 0 Crlj 86. The Madhya Bharat High Court, in Prabhulal v. Parwatibai, AIR 1952 Madhbha 96 even went to the extent of saying that mere minority or the fact that the husband does not work cannot come in the way of grant of maintenance to the wife. What should be ascertained is the earning capacity of the husband, if he i