M.L. Pandse, J.
1. This is an application filed by the husband to challenge the legality of the order dated July 10, 1981 passed by the II Joint Judicial Magistrate, First Class, Dhule, and the order dated December 9, 1981 passed by the Sessions Judge, Dhule in a proceeding under section 125(3) of the Code of Criminal Procedure (hereinafter referred to as the Code).
2. The facts are not in dispute and are required to be stated briefly to appreciate the grievance of the petitioner. Respondent No. 1 is the wife of the petitioner, while respondents 2 and 3 are his minor children. On June 26, 1978 respondents 1 to 3 filed an application before the Judicial Magistrate, First Class, Dhule for maintenance as provided by section 125 of the Code. On January 27, 1981, the application was granted and respondent No. 1 was awarded the maintenance of Rs. 50/- per month, while respondents 2 and 3 were each awarded Rs. 30/- per month. The Magistrate also directed that the amount of maintenance shall be paid from the date of filing of the application i.e. June 26, 1978. As the husband failed to pay the amount of maintenance, respondents 1 to 3 filed application for enforcement as contemplated under section 125(3) of the Code before the Judicial Magistrate on April 18, 1981. The trial Magistrate issued notice to the petitioner but he remained absent and thereupon on May 18, 1981 the trial Magistrate issued distress warrant for attachment of the movables of the petitioner. The warrant was returned unserved with an endorsement that the petitioner has no property whatsoever. Thereupon on July 10, 1981, the Magistrate issued him a notice to show cause why he should not be detained in prison. The petitioner replied by Exh. 7, that he has no property whatsoever and he is unable to pay the amount of maintenance. The Magistrate thereupon held that he was left with no alternative but to send the petitioner to the jail and accordingly sentenced him to suffer simple imprisonment for a term of one month or until payment of the amount.
3. Respondent Nos. 1 to 3 carried a criminal revision before the Sessions Court, Dhule claiming that the sentence awarded by the Magistrate should be enhanced. The Sessions Judge, by his judgement dated December 9, 1981 modified the order passed by the Magistrate and directed that the petitioner should be detained in jail for a period of one month in respect of default of each month and directed the trial Court to issue necessary warrant. The order of detention passed by the two courts below is under challenge.
4. Shri Shah, the learned Counsel appearing in support of the petition, submitted that both the courts below were in error in exercising powers under section 125(3) of the Code when it was not established that the petitioner had sufficient means to pay the maintenance and inspite of it has failed to comply with the order passed by the Judicial Magistrate. Shri Shah also submits that the Sessions Judge was clearly in error in holding that the husband can be detained in jail for a period of one month in respect of default of payment of each month. In my judgement, it is not necessary to consider the alternate submission of Shri Shah in these proceedings as it is obvious that the order of detention is clearly vitiated because both the courts below have failed to record a finding that the husband has means to pay the maintenance amount and still has defaulted. Section 125(1) opens with the words 'if any person having sufficient means neglects or refuses the maintenance' and sub-section (3) of the section 125 provides that if any person so ordered, fails without sufficient cause to comply with the order'. Reading these two expressions together, it is obvious that the powers under section 125(3) of the Code could be exercised and the husband could be detained in jail provided it is established that at the time of passing the order he has means to pay and still he declines to comply with the order. The facts set out hereinabove, indicates that the distress warrant issued by the trial Magistrate was returned unexecuted because the petitioner had no property whatsoever and the petitioner has also filed his reply (Exh. 7) claiming that he had no property, and therefore, should not be detained. Unless the Magistrate records the finding that the petitioner has means to pay and still declines to pay, the petitioner could not have been ordered to be detained in jail. The Sessions Judge has also totally over-looked this aspect of the matter and has proceeded to enhance the sentence. In my judgement, the order passed by the two courts below detaining the petitioner cannot be sustained in the circumstances of the case. It is open for the respondents 1 to 3 to lead proper material before the Magistrate to establish that the petitioner has means to pay and then only an order under section 125(3) of the Code can be passed.
5. Accordingly, the petition succeeds and the rule is made absolute and the order dated July 10, 1981 passed by the Judicial Magistrate, First Class Dhule in Criminal Miscellaneous Application No. 81 of 1981 and that passed by the Sessions Judge, Dhule, on December 9, 1981 in Criminal Revision Application No. 349 of 1981 are set aside. The bail bond stands cancelled.