Mother being natural guardian of child has right to decide surname, says SC

“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,” said a bench of Justices Dinesh Maheshwari and Krishna Murari.

The court was hearing an appeal against the January 24, 2014, judgment of the Andhra Pradesh HC that had asked her to restore the child’s surname to the previous one and to show the name of the late husband in records as his natural father and if that is not possible, to mention the new husband as his step-father.

Disagreeing, Justice Maheshwari writing for 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’.”

On the direction to include the name of the appellant’s husband as step-father in documents, the SC said it “is almost cruel and mindless of how it would impact the mental health and self-esteem of the child”.

The judgment said “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. 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 court said “the mother being the only natural guardian of the child” in question, “has the right to decide the surname of the child. She also has the right to give the child in adoption”.