A government notification requiring married women to obtain a no-objection certification from their husbands if they wish to legally change their surnames back to their maiden names, was challenged before the Delhi High Court on Thursday.

Lawyers Scroll spoke with agreed with the challenge and said that the notification is unconstitutional due to being “discriminatory” and “irrational”. In spite of this, the requirement is a common occurrence in many Indian statutes.

What is the notification about?

The undated notification, published by the Department of Publication of the Union Ministry of Housing and Urban Affairs, says that a woman seeking to legally change her name back to her maiden name – that is, her surname before marriage – must submit either a certificate from her husband granting that “he has no objection” if she uses her maiden surname or a copy of her divorce decree. Additionally, if the matter of divorce is pending in court, the woman’s name change application would stay on hold till the divorce case is concluded.

The notification is not dated and does not carry any government insignia. Also not clear is why it was issued by the Union Ministry of Housing and Urban Affairs, since it falls outside the ministry’s remit.

Senior partner at the law firm Karanjawala & Co and Advocate on Record at the Supreme Court, Ruby Singh Ahuja, who is the counsel for the petitioner who challenged the notification, told Scroll that her legal team could not find when the notification was published or why it was notified by the housing and urban affairs ministry.

The Internet Archive, which archives web pages across the World Wide Web, has a record of the notification being available online as far back as January 26, 2022.

‘Violative of fundamental rights’

The petition before the High Court contends that the notification violates Articles 14 (equality before law), 19 (protection of certain rights regarding freedom of speech, etc.) and 21 (protection of life and personal liberty) of the Constitution.

“Choosing one’s name is a fundamental right,” said Ahuja. “The notification creates unnecessary obstacles in the exercise of this right.”

She said that by making it more cumbersome for women to change their names, compared to men, the notification is discriminatory on the basis of gender.

Delhi-based lawyer and women’s rights scholar Mihira Sood told Scroll that there are “several levels of irrationality and arbitrariness” in the notification. She pointed out that the notification makes irrational distinctions between not only men and women but also between women who did not change their names after marriage and those who did, but later wish to revert to their earlier names – as well as between women who wish to switch to their maiden names and all other women who might want to change their names to something else.

“There is no purpose served by any of these distinctions,” Sood said.

Ahuja was in consonance. “Why must the husband’s permission be sought by a woman to change her name?” she asked.

This notification is also at odds with the government’s stance, articulated by the Prime Minister in 2017, that women should not require marriage-related documentation while applying for passports.

A larger problem

The notification is part of a larger Indian trend of rules and statutes that assume a woman must take on her husband’s name after marriages.

“There is enough anecdotal evidence of women facing obstacles in obtaining ordinary services, from government authorities as well as private service-providers, if they don’t use their husband’s surnames,” said Sood.

There have already been documented instances of travel agents asking women for no objection certificates from their husbands in order to travel alone. Courts have had to overrule the requirement of such no objection certificates from married women for travelling abroad with their children and for donating organs, among other things.

“Even when there is no legal requirement of such NOCs, authorities may not be aware and assume otherwise,” said Sood. “This way, institutions sometimes harass women by demanding NOCs”.