The Supreme Court of India has decreed, in effect, that a woman cannot use the husband’s surname after the dissolution of the marriage.Dinesh Patil married Nisha in 1995 after the death of his first wife. Dinesh Patil filed for divorce in 1997 and the marriage was dissolved by a decree of divorce awarded by a family court in 2006.
When Nisha continued using the surname after divorce, Dinesh Patil obtained an injunction in the matter from the family court. The Court held “By using the name/surname (of the husband), there is always a possibility of people being misled that she still is his wife, when in fact she is not.” On an appeal by Nisha to the Bombay High Court, the Honourable High Court concurred with the lower court and held that she “cannot use the husband’s name anywhere, including in her bank account.”
Nisha challenged the High Court judgment in the Supreme Court through a Special Leave Petition. She contended that the matter was beyond the jurisdiction of the family court. She argued that there was no rule governing the use of the husband’s surname after divorce. She went on to contend that “Surname is not a trademark which can be patented by an individual.”
The Supreme Court dismissed the SLP and said that they were “not inclined to interfere with the impugned order” (of the lower courts).
Earlier this year, in a case where the Passport Office refused to renew the passport of a divorced Pune woman continuing to use her former husband’s surname (even though the husband did not object to the use of his surname after the divorce), the Additional Solicitor General Darius Khambata submitted the opinion that a divorced woman could use her former husband’s name. “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.”
We add our two pence (as has become our practice now!): the Additional Solicitor General seems to have erred in the interpretation of Article 21 of the Constitution of India; the interpretation seems to stretch Article 21 a tad too far. The observation made by the presiding officer of the Family Court put the matter in a nutshell. The family court’s opinion is, essentially, commonsense, ladies and gentlemen!
