Divorcees can retain surnames

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 (right to life) to use any name including her married name notwithstanding the fact that her marriage has been dissolved,” said additional solicitor generalDarius Khambata in a legal opinion to the Mumbai regional passport office (RPO). The legal position thus clarified, the passport office finally reversed its earlier stand and issued a divorced Pune woman a renewed passport in her former married surname this week.

The passport office had earlier this year denied a Pune woman her constitutional right to use her name, even though her former husband had no objection to its use. The RPO had referred the matter to the law ministry. The authority appeared to rely on a report of a February 2010Bombay high court order that stopped onedivorced 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 legal validity of its refusal to issue Rina D’Mello (name changed) her passport in her married name. In August Khambata, answering the passport officer’s query, said it “was wrong to insist on issuing the passport in her maiden name”.

He said the passport office can issue the passport 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 when her bank account, flat, ration card, passport, voter card, her signature were all in her former married name. A change would mean “immense hardship” apart from violation of her constitutional right, said Agnes. She said many women had suffered because of this approach.

Khambata, to whom the law ministry had referred the matter said 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.”

In the HC case relied on by the passport authority, the husband had specifically objected to his ex-wife’s use of the married name, Khambata pointed out and said the case was “distinguishable on facts”.

Not passport officers alone, several other authorities too have been “harassing” divorced woman over the use of