Mother Can Give Surname Of Second Husband To Child After Death Of Biological Father : Supreme Court

The Supreme Court has observed that a mother who remarries after the death of the biological father can decide the surname of the child and include it in her new family.

The bench comprising Justices Dinesh Maheshwari and Krishna Murari set aside an Andhra Pradesh High Court judgment which directed a mother to change the surname of her child and also to show the name of her new husband in records only as 'step father'.

The court said that such a direction is almost "cruel and mindless of how it would impact the mental health and self-esteem of the child".

In this appeal, the dispute between the mother (who remarried another man after death of first husband) and the parents of the deceased biological father of the child (grandparents) was about the surname that should be given to the child. The mother had approached the Apex Court challenging a direction issued by the Andhra Pradesh High Court (while disposing an appeal that arose from a petition under Section 10 of the Guardian and Wards Act, 1890) to restore the surname of the child. So far as the name of the father of the child is concerned,  the High Court directed that wherever the records permit, the name of the natural father shall be shown and if it is otherwise impermissible, the name of the new husband of the mother shall be mentioned as step-father.

The issue raised in this case were:

(1) Whether the mother, who is the only natural/legal guardian of the child after the death of the biological father can decide the surname of the child. Can she give him the surname of her second husband whom she remarries after the death of her first husband and can she give the child for adoption to her husband?

(2) Whether the High Court has the power to direct the Appellant to change the surname of the child specially when such relief was never sought by the respondents in their petition before the trial Court?

The bench noticed that in the case of Githa Hariharan and Ors. vs. Reserve Bank of India and Ors, mother has been elevated to an equal position as the father, bolstering her right as a natural guardian of the minor child under Section 6 of the Hindu Minority and Adoption Act, 1956.

"Therefore, 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 court observed.

Regarding the importance of surname, the bench 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. Surname is not only indicative of lineage and should not be understood just in context of history, culture and lineage but more importantly the role it plays is 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 court also observed that the direction of the High Court to include the name of the present husband as step-father in documents is almost cruel and mindless of how it would impact the mental health and self-esteem of the child.

"Name is important as a child derives his identity from it and a 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", it said.

The court noted that during the pendency of the present petition, the present husband adopted the child by way of Registered adoption deed. Referring to Section 12 of the Hindu Adoption & Maintenance Act, 1956 and the definition given to 'adoption' in Encyclopedia of Religion and Ethics,the bench observed:

"When such child takes on to be a kosher member of the adoptive family it is only logical that he takes the surname of the adoptive family and it is thus befuddling to see judicial intervention in such a matter. . While the main object of adoption in the past has been to secure the performance of one's funeral rights and to preserve the continuance of one's lineage, in recent times, the modern adoption theory aims to restore family life to a child deprived of his or her biological family", the court observed answering the issue in favour of mother.

Regarding the second issue, the bench said that, while directing for change of surname of the child, the High Court has traversed beyond pleadings and such directions are liable to be set aside on this ground. While allowing the appeal, the court said:

"To obviate any uncertainty it is reiterated that the mother being the only natural guardian of the child has the right to decide the surname of the child. She also has the right to give the child in adoption. The Court may have the power to intervene but only when a prayer specific to that effect is made and such prayer must be centered on the premise that child's interest is the primary consideration and it outweighs all other considerations. With the above observations the directions of the High Court so far as the surname of the child is concerned are set aside."