Identification of Women via Husbands: A Mockery of Article 15

Debby Jain

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As you would agree, women have identified themselves for the longest time via their father’s surname; and upon marriage, by their husband’s. Resultantly, there has been much furore in modern times over why they should not do so. And though I take objection to the practice, legally speaking, it is now a matter of choice.

Considering, I present hereinafter a two-pronged argument that focuses on – (i) the government’s failure in addressing gender inequality insofar as identity documents (IDs) of women and forms that require filling so that they may avail services still feature a “Father’s/Husband’s Name” section, and (ii) the problem with entitling women as ‘wife of’ (W/o) their husbands but not men as ‘husband of’ (H/o) their wives.

The History of Surname Adoption

Upon marriage, an Indian woman starts bearing signs in the name of tradition that would tell you from afar that her marital status has changed. A sadder transition, however, would be witnessed in how she comes to identify herself post marriage. In most cases, she would change her surname and adopt that of her husband’s not knowing exactly why. Has it ever occurred to you that continuation of this practice may have no legitimate basis? As shocking as it may sound, it was during the Middle Ages (9^th c.) that women first lost their independent identity. In recognition of a legal doctrine known as ‘Coverture’, they came to be denigrated as their husband’s chattel. This doctrine dictated that a man subsumed all legal rights of a woman upon marriage, making her a non-person in the eyes of law.

Consequently, she lost the freedom to use her maiden name (assigned at birth) by will and her identity was reduced to being the ‘W/o’ a man. A British court is reported to have explicitly held in 1340 that, “when a woman took a husband, she lost every surname except ‘wife of’”. Over the years, this English practice dissipated; though as slowly as swift was its spread to British colonies and beyond. In the modern age of feminism, its vestiges are seen on a micro level when women thoughtlessly embrace the title ‘W/o’, and on a macro level when countries refuse to criminalize marital rape and deny women autonomy that men are otherwise entitled to.

Indian laws, however as they stand now, do not deprive a woman of what she is entitled to simply because she will not adopt her husband’s surname. From a legal perspective, her choice is honoured in the matter. Nonetheless, the practice of identifying women by husband’s (sur)name is evermore rife in real terms, perhaps owing to misconceptions outlined below.

Identification by Husband’s (Sur)name: Myths and Fallacies

Oft-cited justifications for the perturbing practice of identifying married women by their husband’s name, include inter-alia – (i) a married woman’s identification as such prevents cases of mistaken identity, for Indian names can be confusingly similar and sometimes even identical, (ii) there is comparative ease in the determination of rights (of wives and children) and (iii) supplementing of congruency in family name of the child born out of wedlock.

In respect of (i), it is posited that certainty of an individual’s identity cannot come at the cost of women’s sense of identity. If this justification were rational, proponents would claim for identification via spouse’s name for both men and women in that the problem of confusion besets the male populace just as well as it does the female populace. In 2011, ex-CEC of India also cited similar justification while suggesting mandatory addition of husband’s name to Aadhaar card. He opined that because PAN cards of women bear their father’s surname and those from southern states refrain from using full names, there is a likelihood of confusion.

However, it is suggested that mandatory use of full legal name along with Aadhaar ID aptly solves identification problems and is preferable over-identifying women by their husband’s name. With regard to (ii), it may be noted that married women’s and children’s rights are independent of the surnames used by them. Laws governing family, guardianship, adoption, inheritance, etc. in India do not explicate a separate provision for those of them who do not adopt their husband’s and father’s surname respectively; thank be to Article 14 of the Indian Constitution.

A last nail in the coffin has been served against the conservative view in the matter by way of an express ruling in 2012 wherein and whereby women’s right to retain their maiden names after marriage was enunciated. With respect to (iii), it is reckoned that the argument is fallacious. For starters, there are women, even if few, who haven’t succumbed to societal and/or peer pressures and have held onto their maiden names. Their children have most often adopted the father’s surname but the incongruency between the parents’ surnames has been of no consequence.

In addition, the decision whether a child should adopt the father’s surname or the mother’s or a combination of both, should not be calibrated by traditions and ill-found practices of long-standing. In countries like the US, the practice has already been renounced and there is increasing inclination towards alternatives, including but not limited to, usage of hyphenated surnames. We should take a leaf out of the same and stop undermining the importance of a woman’s surname.

Identity Documents and the Issue with ‘W/o’

On one hand, a wide range of authorities necessitate in a variety of forms and as part of registrations that married women identify themselves as W/o or daughter of (D/o) their husbands and fathers respectively. On the other, unexplained, archaic practices cause married women to automatically identify themselves by their husband’s name. Insofar as the purpose of identification is sufficiently fulfilled by separate sections soliciting Aadhaar Nos. and/or PAN details, I believe that the former practice only normalizes gender bias. For a clearer perspective, you may compare the number of times you have come across a ‘H/o’ section with the number of times you’ve encountered a ‘W/o’ section.

Be it an application form for a document that serves as ID proof for women (like the driver’s license) or be it one that’s filled out for enjoying services (like bank account opening), a woman is obliged to identify herself by her spouse’s name despite her Aadhaar and/or PAN details uniquely identifying her alone. Unequivocally, banks’ account opening forms manifest this discrimination most vividly. While Bank of Baroda’s form features a “Father’s/Husband’s Name” column, PNB’s deftly enquires the ‘Maiden Name of Married Women’ instead of ‘Birth Name of Applicant’. Union Bank’s form cares even less about being subtle insofar as it explicitly features ‘W/o’ as a ‘Title’ before the Applicant’s name.

To acknowledge steps made in the right direction, Aadhaar card and Voter ID card applicants have been given the option to supply credentials of any one of 5 relatives listed thereunder. Be that as it may, a clichéd ‘W/o’ may be noted in case of Aadhaar IDs issued to most married women – an infallible proof – that old practices die hard. Unsurprisingly on the other hand, husbands almost never identify themselves by their wives’ (sur)names.

This is to show that the practice under question prevents breaking of a vicious cycle. In consideration of the prevailing norm, most authorities fail to use gender-neutral terms like “Spouse’s Name” and/or “Birth Name of Applicant” in documents; ergo, the practice continues because registrations require and validate women’s identification in this manner.

In my opinion, this practice needs to be abjured on the executive and administrative front first so it may stop feeding prejudices.

Concluding Thoughts

It is observed that the abovementioned practice of authorities and individuals alike not only takes us two steps back by deepening the dent on women’s sense of identity but also perpetuates a peculiarly Indian form of madness just because things have been a certain way for a while. A second tragedy besetting the issue is that the State unapologetically backs these subtle manifestations of sexism and fails to guarantee sexual equality in terms intended by Article 15 of the Indian Constitution.

Be that as it may, the issue may not seem perturbing at all on first glance; and so, I take the liberty to underscore that, at the very least, it is an exemplar of how blithe State-backed sexism can be, despite the many battles over women’s right to reproductive choice, to equal remuneration and to maternity leaves which have been fought and won, and how little we are doing about it.

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Debby Jain is in her 3rd Year (Final Year) at Faculty of Law, University of Delhi.

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