Does It Matter That Divorced Women Can Retain Their Married Surnames?

From the archive: first published October 2, 2011.

Divorced women have a reason to cheer. No authority can prevent them from continuing to use, for legally valid purposes, their former married surnames.

"The wife has a fundamental right under Article 21 of the Constitution of India to use any name, including her married name, notwithstanding the fact that her marriage has been dissolved," said Additional Solicitor General Darius Khambata in a legal opinion to the Mumbai regional passport office. The legal position thus clarified, the passport office reversed its earlier stand and issued a divorced Pune woman a renewed passport in her former married surname.

The passport office had earlier this year denied her the right to use her name, even though her former husband had no objection to its use, and had referred the matter to the law ministry. The authority appeared to rely on a February 2010 Bombay High Court order that had stopped one divorced woman from using her married name after her ex-husband specifically objected to it.

In June, women's activist and advocate Flavia Agnes wrote to the passport office and sought the legal validity of its refusal to issue Rina D'Mello (name changed) her passport in her married name. In August, Khambata — to whom the law ministry had referred the matter — answered that it was "wrong to insist on issuing the passport in her maiden name." He said the passport could be issued in the wife's married name, given that her reasons "appear genuine" and her husband had no objection.

The passport office had insisted on renewing her passport in her maiden name, even though her bank account, flat, ration card, voter card and her signature were all in her former married name. A forced change would mean "immense hardship" apart from the violation of her constitutional right, said Agnes, adding that many women had suffered because of this approach.

Khambata clarified that each case would have to be considered on its own facts: "There is no general rule for the passport authority to reject an application by a divorced woman for a passport in her erstwhile married name. A wife could be restrained from using her married name only if she used that name to deceive or mislead any authority or the world at large, or if the use of that name led to any misuse." The High Court case relied on by the passport authority was "distinguishable on facts," since the husband there had specifically objected.

It does matter — because for thousands of women, the name on their passport is the name on their bank account, their flat and their life, and no official has the right to take it away.

What happened next: in 2015 the Bombay High Court confirmed the principle outright, ruling in Hema Gadgil vs. The Passport Officer that no law prevents a divorced wife from using her former husband's surname — and that demanding a "no objection certificate" from the ex-husband is illegal.

Editor's note: this article was rewritten during our editorial review. The original 2011 version reproduced a press report verbatim and broke off mid-sentence; the text above is an original summary of the reported facts, with the 2015 High Court outcome added.