A mother has an absolute right to decide her ward’s surname after the death of her former husband and that she cannot be forced to keep using her deceased husband’s surname in the records of the child, the Supreme Court ruled, in a judgment that upholds a woman’s right as a natural guardian of a minor.

A bench of Dinesh Maheshwari and Krishna Murari bore down on a mother’s right to decide what’s in the best interest of the child after the demise of her husband, underlining that she must have the full freedom to choose the child’s surname.

If she remarries, the court said, the child can be given the surname of her second husband or the mother can even give up the child for adoption if the act entails the interest of the minor.

The ruling by the bench came while setting aside a 2014 judgment of the Andhra Pradesh high court, which directed a woman to restore to her child the surname of her dead husband and also ensure that the deceased’s name is mentioned at all places as the father of the child in official records.

If a situation arises where the name of her second husband is to be mentioned in the child’s records, the high court ordered, he should be explicitly referred to as the “step-father”. The high court had passed these directives after the deceased husband’s parents had demanded the guardianship right for the child, besides objecting to the new surname of the minor, who is now 16.

Setting aside the high court order, the bench termed those directions as “mindless and cruel”, for it failed to take into account the equal status of mother and father, and also did not consider the best interest of the child.

“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 child’s surname,” said the court.

Highlighting the significance of a surname in the social context, the bench pointed out that surname is not just 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’…” it held.

Criticising the high court order on describing the woman’s second husband as step-father in the child’s records, the top court noted that such a direction “is almost cruel and mindless of how it would impact the mental health and self-esteem of the child.”

A name is important as a child derives his identity from it and a difference in name from his family will 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, it flagged.

“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,” ruled the bench.

About the woman’s right to give up the child for adoption, the court cited Section 9(3) of the 1956 Hindu Adoption and Maintenance Act, which provides that the mother may give the child for adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.

“She also has the right to give the child in adoption,” declared the bench, adding a court may have the power to intervene but only when the child’s interest is the primary consideration and it must outweigh all other factors.

“Therefore, 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,” said the court.

In the present case, after the high court order in 2014 and during the pendency of the matter in the Supreme Court, the step-father adopted the male child by way of a registered adoption deed to enable that the child have the new surname.

The top court affirmed this action. “We 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 added.

Source: The Hindustan Times

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