While disposing of an appeal filed by a nurse, Justice H L Gokhale has upheld a lower court order passed by the Joint Civil Judge, Thane, S K Kulkarni, which had stopped the nurse from residing in any of the properties owned by the doctor who has not legally divorced his wife.

Observing that the `other woman', can only visit the doctor's hospital as part of her profession, Justice Gokhale ruled that she cannot stay in the other properties. While endorsing the restriction on the nurse's entry, the high court has maintained that the lower court will decide on the merits of the case during the trial.

The case assumes significance as the lawyer-wife has filed a special civil suit seeking damages of Rs 25 lakh from her doctor-husband,who has entered into an alleged illicit relationship. She had asked the civil judge to stop the nurse from using her residential premises as it was causing ``an irrepairable loss to her professional and personal status''.

Unlike regular judicial practice, the lawyer-wife has not filed the suit under the provisions of the Specific Relief Act, but under the Law of Torts. In the words of Advocate Rajesh Behere, who is representing the wife in the high court, it is the first time that the Law of Torts, and not the provisions of the Indian Penal Code, has been brought into the picture.

``Unlike a crime, a Tort is a violation of a right or breach of duty towards an individual. It is redressable in form of damages and differs from wrongdoings which are wholly criminal in nature or cause public nuisance. This law has so far not been cited in any matrimonial matter,'' Behere says.

As per the judgement of the civil judge, the suit states that the husband has violated the mutual `right of consortium' between thecouple. The judge has called it a ``unique suit filed for damages arising out of tortuous liability''.

He has stated that if the right of consortium is violated (by either husband or wife), either of them can sue for damages. The judge has stated that since the stay of the nurse in the doctor's premises violates this mutual right, the nurse's entry in the residential premises should be restrained, especially since the latter has no legal right over the property.