Whether wife can be prevented from using surname of husband after divorce?

Hearing a petition filed by a 67 year old lady who was divorced from her husband in 2003, the Bombay High Court has taken a view that “There is no law which prevents a wife from using her name adopted after the marriage containing the name and surname of her husband even after a decree of divorce is passed by a Court of competent jurisdiction.”

The lady had applied for renewal of her passport, after which the Passport Office wrote back to her, saying, “Since you are a divorcee and using the surname of your ex-husband, you are requested to submit No objection certificate from him to use his surname.”

Thereafter, the matter reached the High Court wherein the division Bench of Justice Oka and Justice A.K. Menon pronounced that, “In fact, it is the right of the petitioner to use anyname, including the name of her divorced husband.Therefore, in our view, the direction issued by the passportauthorities to obtain No objection certificat e from the ex-husband is completely illegal. Right to obtain passport in accordance with law is held to be a fundamental right under Article 21 of the Constitution. The impugned communicationbeing illegal violates the said right. In  fact, the approach ofthe passport officer is perverse.”

According, the communication by passport office was set aside, and it was ordered that if the application for renewal is still pending, it should be decided on merits, within a month.

Interestingly, no one appeared from the side of Passports Officer or the Union of India in the case.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Ms.Hema Gadgil  Vs  The Passport Officer, Passport Office, Pune 

WRIT PETITION NO.6292 OF 2012

CORAM : A.S.OKA AND A.K. MENON, JJ.
DATED :  6TH JANUARY, 2015

Citation;2015(2) ALLMR 879



Called out for final hearing. None appears for the
petitioner and the respondent.
2.
1.
On 8th April, 2002 a passport was issued by the
Passport Office, Pune to the petitioner. The passport was
issued to the petitioner in her name (Hema Prabhakar Gadgil)

after her marriage. The passport was valid till 7 th April, 2012.
On 6th March, 2012, the petitioner applied for renewal of the
passport. Challenge in the petition is to the communication
dated 22nd May, 2012 issued by the Passport Office, Pune to
the petitioner. The relevant part of the communication reads
as under:-
“ Smt.Hema Gadgil,
Savitri 18 Tapobhoomi Soc
Dattawadi,
Pune 411 030.
Sub : Grant of passport facilities
Madam,
Please refer to your application on the above subject.
Since you are a divorcee and using the surname of your
ex-husband, you are requested to submit No objection

It is pointed out in the petition that in February,
3.
certificate from him to use his surname.”
2003 the marriage between the petitioner and her husband
was dissolved by a decree of divorce.
On 7th August, 2012, a Division Bench of this Court
4.
issued notice to the respondents. There is no reply filed by

the respondents. By further order dated 7 th January, 2014, this
Court issued notice for final disposal. The said notice for final
disposal has been served to both the respondents. However,
none appears for both the respondents.
5.
The case made out in the petition is that the
petitioner is using the surname of her ex-husband for the past
42 years. We have already quoted what is stated in the
impugned communication. There is no law which prevents a
wife from using her name adopted after the marriage
containing the name and surname of her husband even after a
decree of divorce is passed by a Court of competent
jurisdiction. In fact, it is the right of the petitioner to use any
name,
including
the
name
of
her
divorced
husband.
Therefore, in our view, the direction issued by the passport

authorities to obtain No objection certificate from the ex-
Right to obtain passport in
husband is completely illegal.
accordance with law is held to be a fundamental right under
Article 21 of the Constitution. The impugned communication
being illegal violates the said right.
In fact, the approach of
the passport officer is perverse. We, therefore, proceed to set
the
communication
dated
22nd
May,
2012
and
aside
We set aside the impugned communication dated 22 nd
May, 2012;
If the application made by the petitioner for renewal of
(ii)
(i)

accordingly, we pass the following order:-
passport is still pending, the same shall be decided by
the
passport
authorities
without
insisting
on
the
petitioner obtaining No objection certificate in writing
(iii)
from her ex-husband;
If the application is still pending, the same shall be
decided within a period of one month from the date on
which an authenticated copy of this order is produced by
the petitioner before the concerned passport authorities;
(iv) The petition is allowed in the above terms.
(A.K.MENON, J.)
(A.S.OKA, J.)

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