B. S. KAPADIA, J. ( 1 ) BOTH the above applications arise out of the common order passed by the learned Sessions Judge Bharuch on 23-7-1987 in Criminal Revision Applications No. 71 and 72 of 1986 against the orders passed by the learned Magistrate in Misc. Criminal Applications No. 44 of 1987 and 278 of 1986 which were filed by the present petitioner Chandrikaben Navnitlal Dave who is the wife of present opponent No. 2 Harish Badrishankar Dixit. The learned Magistrate passed order on Misc. Criminal Application No. 44 of 1987 on 15-5-1987 directing the opponent No. 2-husband to undergo imprisonment for 15 days per each month of arrears of maintenance i. e. total 60 days as he has failed without sufficient cause to comply with the order of maintenance passed in Misc. Criminal Application No. 301 of 1982 dated 16 The said application was filed in respect of arrears of maintenance for the period from 16-9-1986 to 16-1-1987 i. e. for a period of four months. ( 2 ) IN the second application which was filed by the present petitioner she has claimed enforcement of the aforesaid order for a period of seven months from 17-2-1986 to 16-9-1986 and the learned Magistrate has passed the order directing the opponent-husband to undergo imprisonment for 10 days each for each month of arrears of maintenance i. e. total 70 days. ( 3 ) IN the revision applications filed by the present opponent No. 2 - husband against the said orders the learned Sessions Judge has reduced the period of imprisonment and also held that both the above sentence to run concurrently and the opponent-husband was allowed to be free for the period of imprisonment undergone by the opponent No. 2. ( 4 ) MR. A. D. Shah the learned Advocate for the petitioner in both the aforesaid applications submits that the order passed by the learned Sessions Judge is totally erroneous firstly on the ground that the learned Sessions Judge has no powers to treat the orders of imprisonment passed under Sec. 125 (3) of the Cr. P. C. to run concurrently and secondly on the ground that the learned Sessions Judge has exceeded jurisdiction in reducing the sentence without considering that the learned Magistrate has properly exercised discretion vested in him for imposing sentence of imprisonment. ( 5 ) IN support of his contention Mr. P. C. to run concurrently and secondly on the ground that the learned Sessions Judge has exceeded jurisdiction in reducing the sentence without considering that the learned Magistrate has properly exercised discretion vested in him for imposing sentence of imprisonment. ( 5 ) IN support of his contention Mr. Shah submits that the order of sending defaulting husband to jail for undergoing imprisonment is not on account of conviction of any offence and therefore the provisions of Sec. 31 of the Cr. P. C. would not apply in the present case. In support of this contention Mr. Shah has placed his reliance on the judgment in the case of Jaswantsinghji Fatehsinghji Thakore v. Kesuba Harisinh Dipsinhji reported in AIR 1955 Bombay page 108 wherein it is observed as under:"the Criminal procedure Code does not make failure to maintain the wife and children punishable. What is made punishable under the Code is failure without sufficient cause to carry out the order passed by a Magistrate for payment of maintenance. . . . . . "in the said case it is further observed as under:". . . . . . . . It is true that if an order for payment of maintenance under Sec. 488 Criminal Procedure Code is not complied with the same may be executed by issue of a warrant for levying the amount due under the order in the manner provided for recovery of fines. The Magistrate who passes an order for payment of maintenance can also sentence the reason ordered to pay maintenance if he fails without sufficient cause to comply with the order to suffer rigorous imprisonment for the whole or any part of each months allowance remaining unpaid after the execution of the warrant. But the fact that the Legislature has made provision for enforcement of the order passed under sec. 488 Criminal Procedure Code for levying the amount due under it in the manner in which fines are recovered or by directing that the person who continuously disregards the order shall be liable so punishment does not convert an application for maintenance into a charge for commission of an offence within the meaning of Clause (c) of Sec. 4 Criminal Procedure Code. "in the said case all the different facts have been considered about the essential civil nature as also the right of the opponent-husband in the original application under Sec. 340 of old Cr. P. C. of giving evidence. It is important to note that even in the Criminal Procedure Code of 1973 there is similar provision in Sec. 315 (2) which provides that any person against whom proceedings are instituted in any Criminal Court under Sec. 98 or Sec. 107 or Sec. 108 or sec. 109 or Sec. 110 or under Chapter IX or under Part-B Part-C or Part-D of Chapter X may offer himself as a witness in such proceedings. It is important to note that the proviso to Sec. 315 (2) of the Cr. P. C. refer to Secs. 108 109 and 110 for the effect of failure of such person to give evidence but to it does not effect the failure of giving evidence by the opponent in the case under Chapter IX of the Cr. P. C. Therefore no failure of giving evidence may be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same inquiry. Even on reading sub-sec. (3) of Sec. 125 of the Cr. P C. it is clear that the opponent-husband can certain say that he had no sufficient means and he could not pay up the amount of maintenance as per the order of the Magistrate. He can also offer to maintain his wife on the condition of her living with him and if such a defence is raised the Court may consider about the genuineness thereof or when the wife refuses to live with him after the offer is made by the husband the learned Magistrate can pass the order notwithstanding such offer. Even after the new Criminal Procedure Code 1973 came into force the provisions are substantially the same as they were in the Criminal Procedure Code of 1898 and the aforesaid judgment of the parent High Court is equally binding to this Court. ( 6 ) SUBSEQUENTLY then nature of the application for maintenance under Sec. 125 of the Cr. P. C. came to be considered by this Court in the case of Jugatambalal J. Gandhi v. State of Gujarat XVII GLR page 335. ( 6 ) SUBSEQUENTLY then nature of the application for maintenance under Sec. 125 of the Cr. P. C. came to be considered by this Court in the case of Jugatambalal J. Gandhi v. State of Gujarat XVII GLR page 335. In the said case after referring to various provisions of the Code as also the judgment in the case of Nand Lal Misra v. Kanhaiya Lal Misra AIR 1960 SC 882 this Court held that Sec. 488 of the old Code and Sec. 125 of the present Code do not contemplate preliminary enquiry before issuing a notice but lay down that all evidence under that chapter should be taken in the presence of the respondent or his pleader indicating thereby that one inquiry only should be held after notice. ( 7 ) IN view of the aforesaid decisions it is settled law that the Court does not make the failure to maintain wife and children a punishable offence and person proceeded against in such proceeding is not an accused. Chapter IX of the Cr. P. C. serves the social purpose and Sec. 125 prescribes an alternative forum to get relief. The proceedings are of a civil nature even though they are in the criminal trial and the remedy is a summary one. The inquiry under Chapter IX is a quashi-criminal one and admission made in the pleading can be taken into consideration and acted upon. The order passed in the application under Sec. 125 is a summary order which does not finally determine the rights and obligations of the parties thereto. Looking to the context in which punishment is provided under Sec. 125 (3) of the Code it cannot be an offence within the meaning of Sec 2 (n) of the Cr. P. C. ( 8 ) IN that view of the matter the question would be whether the Sessions Judge would have right to give direction to run the sentences of imprisonment concurrently in the above applications. The said power is under Secs. 31 and 247 of the Cr. P. C but the said Sections refer to conviction of an offence. When there is no offence there is no question of conviction of the accused for an offence and therefore the provisions of said two Sections cannot come into play when the order under Sec 125 (3) is passed. 31 and 247 of the Cr. P. C but the said Sections refer to conviction of an offence. When there is no offence there is no question of conviction of the accused for an offence and therefore the provisions of said two Sections cannot come into play when the order under Sec 125 (3) is passed. In that view of the matter the order passed by the learned Sessions Judge is erroneous and illegal. ( 9 ) IT is true that Sec. 125 of the Cr. P. C. gives discretion to the Magistrate for imposing sentence of imprisonment for a term which may extend to one month or until payment when the person without sufficient cause fails to comply with the order. The question is that the learned Sessions Judge should have considered whether the learned Magistrate has properly exercised the discretion or not. The learned Sessions Judge has not given any reason for the same but the reason given by the learned Sessions Judge to modify the order of the learned Magistrate is that if the period of imprisonment is reduced perhaps he would earn money and pay to the original applicant-wife. It may be otherwise also if he is kept in the jail for a long period within the permissible limit under Sec. 125 (3) when the defaulting husband against whom the order is passed and/or any of his relatives may come and pay up the arrears of maintenance amount. It is therefore clear that the reasonings given by the learned Sessions Judge cannot be the sound reasoning on which the order passed by the learned Magistrate can be modified. ( 10 ) IN result both the Criminal Revision Applications are allowed. The orders passed by the learned Sessions Judge Bharuch in Criminal Revision Applications No 71 of 1986 and 72 of 1986 are hereby set aside. The orders passed by the learned JMFC Jamboosar in Misc. Criminal Applications No. 44 of 1987 and 278 of 1986 are restored. Rule is accordingly made absolute in both the applications. Revision application allowed. .