Mother being the natural guardian of the child after the demise of the father has the right to decide the surname, said the Supreme Court Thursday while setting aside an order of the Andhra Pradesh High Court which directed a woman to include the name of her second husband in records as a stepfather.
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.
"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," the bench said.
The top court was dealing with a case between the mother, who remarried after the death of her first husband, and the parents of the deceased biological father of the child about the surname that should be given to the child.
The bench said after the demise of her first husband, being the only natural guardian of the child, how can the mother be lawfully restrained from including the child in her new family and deciding the surname.
The top 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.
"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'," the bench said.
On the issue of adoption, the court said according to the Encyclopedia of Religion and Ethics- 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.," it said.