Mother has right to decide child's surname: Supreme Court

New Delhi: Supreme Court on Thursday ruled that the mother, being the natural guardian of a child after the father dies, has the right to decide the child's surname. The top court put aside the Andhra Pradesh High Court's order directing a woman to include the name of her second husband as a stepfather in records, PTI reported.

The apex court observed that the high court's order is "almost cruel and mindless of how it would impact the mental health and self-esteem of the child." The court also ruled that the mother "also has the right to give the child up for adoption."

A bench of Justices Dinesh Maheshwari and Krishna Murari said the direction of the High Court to include the name of the woman's second husband as a "stepfather" in documents is "almost cruel and mindless of how it would impact the mental health and self-esteem of the child." "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 up for adoption.

A bench of Justices Dinesh Maheshwari and Krishna Murari 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 child's interest is the primary consideration and it outweighs all other considerations."

The court was hearing a case between the mother and the parents of her ex-husband, who is the biological father of her child, about the child's surname. It is observed that the mother cannot be restrained from including the child in her new family and deciding the surname.

The court said that a 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. It said there was nothing unusual in a mother, upon remarriage, having given the child the surname of her second husband or even giving the child in adoption to her husband.

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 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 surnames emerges as a mode to create, sustain and display 'family'."

Regarding adoption, the bench, citing the Encyclopedia of Religion and Ethics, said, "Adoption indicates the transfer of a child from old kinsmen to the new. The child ceases to be a member of the family to which he belongs by birth."

"The child loses all rights and is deprived of all duties concerning his natural parents and kinsmen. In the new family, the child is like the natural-born child with all the rights and liabilities of a native-born member. "Therefore, when such a 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.," the court added.