SWATI DESHPANDE- TIMES OF INDIA
MUMBAI: Women in Maharashtra have another reason to celebrate as International Women’s Day approaches. It is now perfectly legal for a woman to retain her maiden name after marriage. The Bombay high court recently amended a crucial rule under the Family Courts Act to prevent a woman from being compelled to file any marriage-related proceedings only in her husband’s surname, thus offering relief to many seeking a divorce. It will also help a married woman file proceedings in other courts under her maiden name, say legal experts.
The radical rule says that “a wife who has not changed her name after marriage, by publishing in the official gazette, may continue to use her maiden name”. The law is clear now: a woman is not obliged to take her husband’s name after marriage.
A woman can file proceedings either in her maiden name or another name she may have adopted as long as it is officially registered in the gazette. If she retains her maiden name, a woman cannot be forced by a court to write her name as her first name followed by her husband’s first name and his surname while making a marriage-related petition.
Flavia Agnes of the women’s rights activist group Majlis, whose efforts led to this change, sees the amendment as a “progressive new addition to the law for women”. Majlis’ efforts ensured that a woman can continue to use her maiden name and surname if she so desires after marriage for all official purposes. She is not bound to use her husband’s name and can initiate proceedings in any court using her maiden name. The ‘after divorce’ status, meanwhile, does not force a woman to revert to her maiden surname if she had been using her husband’s surname all through the marriage. She can continue with the ex-husband’s surname, unless her intention is to defraud him, as was held by the Supreme Court.
Unknown to even lawyers, the new law stands published in the state gazette since last November, after the Bombay high court amended a crucial rule under the Family Courts Act in September 2011.
The law has been hailed by women’s rights activists and lawyers. “A woman cannot be compelled while seeking divorce to adopt her married surname if she hadn’t been using it, just as she cannot be compelled to drop her married name and revert to maiden surname after divorce, if she had been,” said a lawyer.
“Prior to the amendment, the Bandra family court staff would not accept divorce or related applications from hundreds of women until they added the first name of their estranged husband as their middle name, and also his surname,” said Agnes. The court staff would compel the quarrelling couple to bear only one surname-the husband’s-in the court case to be filed.
A year ago, Majlis took up the cause with the Bombay high court because it supervises functioning of all lower courts. The issue, said Majlis, was that in Maharashtra, many communities practised the custom of a new wife changing even her first name after marriage and adopting her husband’s full name. But other communities from states across India do not usually follow this custom, though it’s common for women to adopt the husband’s surname.
Besides, an increasing number of urban women prefer to retain and go by their complete maiden name after marriage to preserve their individual identity. “But when they approach the family court to initiate a divorce dispute or a plea for protection from domestic violence few years later or after decades of living with their maiden name, the insistence by court staff to adopt their husband’s name comes as a shock and sends their litigation-induced stress levels soaring,” said a Mumbai family law lawyer.
Majlis activists said the arbitrary practice causes immense harassment to women litigants”. “There is no logic in making women adopt the husband’s name while seeking divorce when they hadn’t used it all along,” said Agnes.
The NGO informed the HC that the rigid and pervading practice of enabling a woman to file for divorce only after incorporating her husband’s names was evident in appeals filed before higher courts too. The HC swung into action and its Registrar (legal & Research) informed Majlis on February 10, 2012 that it had amended the rule last September to facilitate greater freedom for women under the Family Court rules of 1988. It amended and added a proviso to Rule 5, which deals with the filing of cases in the family court.
The Law On Names
- A wife may continue to use her maiden name if she has not changed it officially after marriage
- A wife can file for divorce in her maiden surname; married surname; any other name she may have adopted and officially gazetted
A woman can continue using her former married surname, except if her intention is to defraud the ex