S.K. Kader, J.
1. 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 Kodu-mon 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 Anally 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 Section 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 Section 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, Qrdinarily 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 wilfully or otherwise is not an offence. Section 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 Section 125 to sentence a person to imprisonment although he has not committed any offence or has not been found guilty of any offence and convicted in any case. It is only because he failed without sufficient cause to comply with an order awarding maintenance that he is sent to jail. Therefore this sub-section should be construed strictly and within the permissible limits in favour of the person who has to be sent to jail depriving his liberty. The mode of enforcement of an order allowing maintenance is prescribed under Sub-section (3) of Section 125 of the Code. By virtue of the provisions in Section 125(3), for the limited purpose of enforcing or executing an order awarding monthly allowance for maintenance, provisions in Section 421 of the Code are made applicable and by a legal fiction the amount of maintenance awarded should be deemed to be a fine. A discretion has been vested in the Magistrate in the exercise of the powers conferred under Section 125(3) and this discretion must be exercised by him with due caution and care. If only a Magistrate is satisfied that the person against whom an order of monthly allowance for maintenance has been ordered failed without sufficient cause to comply with that order, he may proceed to recover the amount due in the manner provided under the sub-section. While acting so, the sub-section clearly states that the Magistrate has first to proceed by issuing a warrant for levying the amount due in the manner provided for levying fines. Before an order of imprisonment is passed a Magistrate must be satisfied that the failure to comply with the order was without sufficient cause and also must have exhausted the two modes provided for in Section 421 of the Code.
4. Section 421 deals with the manner in which fines can be recovered. Section 421 reads:
421. (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing. It considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
5. Two modes are prescribed under Section 421 of the Code for recovery of the arrears of maintenance due as if it were a fine levied. The Court can either issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the defaulter or issue a warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. It is only after the Magistrate has exhausted the two modes prescribed under Section 421 of the Code and still fails to recover the arrears of maintenance due that he can sentence the person who committed the default to imprisonment as enjoined under Section 125(3). that this is what is intended is clear from the following words in the latter part of the sub-section: 'may sentence such persons, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant'. These words will have no meaning, if it was the intention of the legislature that, even without recourse to a warrant of attachment of properties, a defaulter could be sentenced to imprisonment. Sub-section(3) of Section 125 speaks only of issue of a warrant for levying the amount in the manner provided for levying fine and does not speak of issue of a warrant for arrest. The words 'remaining unpaid after the execution of the warrant'' are significant and the reference is to the warrant issued for levying the amount due in the manner provided for levying fines. Therefore, the issue of a warrant for the levy of the amount due is a condition precedent to the sentencing of the defaulter to imprisonment. It may also be noted that the word used between the two clauses in the sub-section is 'and' and not 'or'. The learned advocate appearing for the first respondent argued that the word 'and' should be understood and read as 'or' and it is left to the discretion of the Magistrate to proceed either way. I am unable to agree with this argument of the counsel. It is not disputed that the Word 'or' used in the Code of 1861 between these two clauses was deleted and instead the word 'and' was sub-stituted in the Code of 1898 and that continues even in the present Code. The powers conferred on the Magistrate in this regard have to be exercised in the manner and in the sequence indicated in Sub-section (3) of Section 125 of the Code. I am fortified in my views by the decisions of the High Courts of Andhra Pradesh, Punjab and Orissa. (See Rangaiah v. Rukhmini Bai, 1972 Mad LJ (Cri) 360; Dalip Singh v. Smt. Balwinder Kaur (1973) 75 Pun LR 533 and Jagannath Patra v. Purnamashi : AIR1968Ori35 .
6. The counsel for the first respondent cited two decisions, namely, a Full Bench decision of the Bombay High Court in K.N. Chawda v. State of Bombay : AIR1958Bom99 and a Division Bench decision of the Calcutta High Court in Moddari Bin v. Sukdeo Bin : AIR1967Cal136 in support of his contention. The Calcutta decision is based on the Full Bench decision of the Bombay High Court reported in K.R. Chawda v. State of Bombay : AIR1958Bom99 . In K.R. Chawda's case : AIR1958Bom99 also, at the first instance the Magistrate issued a warrant for attachment of the property and the defaulter was sentenced to imprisonment only when the warrant could not be executed. There, when the husband committed default and failed to comply with the order awarding maintenance to his wife and minor child, the wife made an application for the recovery of four months' allowance which was due. The Magistrate on receipt of the application issued a warrant of attachment of property but the warrant could not be executed as the husband had no property. Thereafter the wife made an application under Section 488 (3) of the previous Code corresponding to Section 125(3) of the Code and it was on that application that the Magistrate issued an order sentencing the husband to be imprisoned for a term of 15 days in respect of each month for which allowance remained unpaid. It was this sentence of imprisonment that was challenged before a Division Bench on the ground that in passing a sentence for two months, the Magistrate exceeded the jurisdiction conferred on him under Section 488(3) of the previous Code (Section 125(3) of the present Code). The Division Bench referred the matter to a Full Bench. The point that was referred to and that came up for determination before the Full Bench was whether in passing the sentence of imprisonment for two months, the Magistrate exceeded the jurisdiction conferred on him and whether in respect of one warrant issued, the sentence which can be inflicted by the Magistrate can only be one month and not exceeding one month. On this point, the Full Bench upheld the order of the Magistrate. The question that before the issue of a warrant of arrest in the first instance itself, a warrant of attachment of movable and immovable properties of the defaulter should be issued was not directly in issue in this case. The observations made by the Full Bench in this regard are obiter dicta and cannot be considered as laying down the law on the point.
7. This apart, no notice has been issued to the petitioner on the application filed by the first respondent on 4-4-1979 on the basis of which the warrant of arrest was issued and there is also nothing on record to show that the Magistrate was satisfied that the petitioner failed to comply with the order without sufficient cause. In Appukuttan v. Savitheri 1974 Ker LT 17 this Court held that it is only consistent with the principle of natural justice that a notice should be issued before drastic steps are taken against a person.
In the result this petition is allowed, the order impugned is set aside and the Magistrate will issue notice on the application dated 4-4-1979 and take further steps in accordance with law and in the light of this order.