'What's in a name? That which we call a rose by any other name would smell just as sweet.’
Romeo & Juliet, William Shakespeare
But ask an Indian woman what it takes to drop her husband’s surname and re-adopt her maiden name, and it wouldn’t 'smell just as sweet.'
Husband’s Permission Mandatory If A Woman Seeks To Re-Adopt Maiden Surname
As per an undated notification on the Department of Publication, Ministry of Housing & Urban Affairs website:
The applicant has to submit a copy of the divorce decree or NOC from the husband.
A copy of the ID proof must be attached to the NOC along with the mobile number.
If the matter is in a court of law, the name change application can’t be processed until the verdict is out.
Decoding The Notification
The husband must have no objection if the wife wishes to drop his surname and re-adopt her maiden name via the legal route. This has to be expressed via a No-Objection Certificate. However, if the couple is embroiled in divorce proceedings and the husband refuses to issue an NOC, the woman has no choice but to wait until a verdict is passed.
Woman Files Writ Petition In Delhi HC, Alleges Discrimination
Divya Modi Tongya, who is undergoing divorce proceedings, filed a petition challenging the notification that prevents her from re-adopting her maiden surname. She has alleged that the notification violated her fundamental rights mandated under the Indian Constitution. Divya has sought the issuance of a writ of certiorari or some other appropriate measure to quash the notification, which she has slammed as 'Discriminatory, Arbitrary, Unreasonable.'
Ruby Ahuja, one of the petitioner's advocates from Karanjawala & Co, says, ‘The notification displays evident gender bias and constitutes a form of impermissible discrimination by imposing additional and disproportionate requisites exclusively on women.’ She told CNBC-TV18, ‘The provision halts the processing of a name-change application if the matter is sub-judice until the final verdict is pronounced and stands in violation of the principle of equality before the law.’
Facts Of The Case
The petitioner legally changed her name to Divya Tongya after marrying Rishabh Tongya in 2010. The name change was published in the Gazette of India, New Delhi, from September 6 to September 12, 2014.
She changed her name legally to Divya Modi Tongya in 2019. The change was documented and published in the Gazette from October 26 to November 11, 2019.
Divorce petition under the Hindu Marriage Act filed in August 2023.
The petitioner wishes to revert to the name – Divya Modi for all social, educational, economic, and other purposes.
Writ Petition Alleges
This notification poses an obstacle to the petitioner's right to change her surname to her maiden surname amid ongoing divorce proceedings.
Action violative of Article 14, 19(1)(a), and 21 of the Constitution of India.
Contradictory to the principles of natural justice.
Fundamental Rights: A Quick Recap
Article 14: The state should not deny to any person equality before the law Article 19 (1) (a): All citizens shall have the right to freedom of speech and expression Article 21: No person shall be deprived of life or personal liberty except according to the procedure established by the law
Why The Petitioner Feels Her Fundamental Rights Have Been Violated?
As per the writ petition:
Article 19 has been violated because 'a person’s name is a vital aspect of his/her self-expression and identity.' Article 21 has been violated because 'it compels a woman to disclose sensitive personal information, thereby violating her right to privacy.' The petition also highlights that the notification is directly in the teeth of the judgment passed by the Supreme Court in the Jigya Yadav vs. CBSE case.
Jigya Yadav Vs CBSE Case: The Key Highlights
The case deals with a minor moving court via her parents seeking that CBSE corrects the names of her parents that had been wrongly recorded. CBSE examination bylaws prohibit any correction in the name of either the candidate or their parents.
The Supreme Court in its judgment had observed that ‘An individual must be in complete control of her name, and the law must enable her to retain as well as to exercise such control freely "for all times". Such control would inevitably include the aspiration of an individual to be recognized by a different name for a just cause.’
The When & Why Behind The Notification
When we scanned the Housing Ministry website, we did find the notification. However, it was an undated one. Also, it is unclear why the notification was published on the MoHUA website. CNBC-TV18 has reached out to the Government and is awaiting their response.
Adopting Husband’s Surname: What The Law Says?
No law in India makes it mandatory for women to adopt their husband’s surname post-marriage. However, for those who choose to adopt their husband’s name via a legal route, the steps are:
Marriage registration
Preparing an affidavit
Notarising the affidavit
Declaration to 3rd party
Gazette notificationParting Shot – Why The Notification Is ‘’Discriminatory, Arbitrary, Unreasonable’’
Discriminatory, because it subjects women to more burdensome conditions while seeking a change in name. For example, if a person wants to adopt a surname different from his/her father or mother’s surname, no NOC is required. Only an affidavit attested by the First Class Magistrate of the concerned area is enough.
Arbitrary because it contradicts logic to make a married woman beholden to the husband’s approval for her to drop his surname. At a time when Indian women are steadily and gradually unshackling themselves from centuries of patriarchal impositions, such rules are not just inhibitors but stick out as tone-deaf as well.
Unreasonable because a person’s name is a vital part of his/her identity, a trait upheld by the Constitution. To force her to seek an NOC gives the impression that a man has proprietorship over her identity.
(Edited by : Anand Singha)
First Published: Mar 7, 2024 11:55 PM IST
