Mother being only natural guardian has right to decide surname of child: SC

The Supreme Court on Thursday remarked that the mother, being the only natural guardian of the child after the death of the biological father (husband), has the right to decide the surname of the child.

By Amiya Kumar Kushwaha The Supreme Court on Thursday remarked that the mother, being the only natural guardian of the child after the death of the biological father (husband), has the right to decide the surname of the child.

A bench of justices Dinesh Maheshwari and Krishna Murari also opined that the mother, being the only natural guardian, also has the right to give up the child in adoption. "After the demise of her first husband, being the only natural guardian of the child we fail to see how the mother can be lawfully restrained from including the child in her new family and deciding the surname of the child," the top court said.

"A surname refers to the name a person shares with other members of that person's family, distinguished from that person's given name or names; a family name," the top court said. "Surname is not only indicative of lineage and should not be understood just in the context of history, culture and lineage but more importantly the role it plays with regard to the social reality along with a sense of being for children in their particular environment. Homogeneity of surname emerges as a mode to create,sustain and display 'family'," the top court said.

The opinion of the top court came while deciding on a dispute between a woman and her parents-in-law relating to the surname of her child. The court was dealing with a plea challenging judgment dated January 24, 2014 passed by the High Court of Andhra Pradesh. In these appeals, the subject matter of dispute between the mother and the parents of the deceased father of the child (grandparents) is the surname given to the child.

The top court while passing an order in favour of the mother to choose the surname of her child, said, "A name is important as a child derives his identity from it and athe difference in name from his family would act as a constant reminder of the factum of adoption and expose the child to unnecessary questions hindering a smooth, natural relationship between him and his parents." "We, therefore, see nothing unusual in Appellant mother, upon remarriage having given the child the surname of her husband or even giving the child in adoption to her husband," the top court said.

On April 9, 2008, the respondents, parents of the deceased father (grandparents) had filed a petition under Section 10 of the Guardian and Wards Act, 1890 for appointing them as Guardians of a minor child, who at that time of filing the petition the child was aged about 2 years old. The Trial Court vide Order dated September 20, 2011, dismissed the Petition.

The grandparents moved High Court, which disposed of the petition with the direction that the mother should complete the formalities for restoration of the surname and father's surname of the child and so far as the name of the father of the child is concerned, the HC directed that wherever the records permit, the name of the natural father shall be shown and if it is otherwise impermissible, the name of step-father should be mentioned as a step-father. The top court set aside the direction of the High Court to include the name of theappellant's husband as step-father in documents and said that it is almost cruel and mindless of how it would impact the mental health and self-esteem of thechild.

"Before parting with this subject, to obviate any uncertainty it is reiterated that the mother is the only natural guardian of the child and has the right to decide the surname of the child. She also has the right to give up the child for adoption," the court said. The Court may have the power to intervene but only when a prayer specific to that effect is made and such prayer must be centred on the premise that a child's interest is the primary consideration and it outweighs all other considerations," the court said. (ANI)

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