Mother has right to give step-father's surname to child after demise of biological father: Supreme Court

The Supreme Court on Thursday observed that mother being the only natural guardian of the child has the right to decide the surname of the child, as also give the child up for adoption. (Akella Lalitha vs Konda Rao and ors).Thus, a direction of the Andhra Pradesh High Court to a mother to restore her child's original surname from his step-father's surname, was set aside by the top court.A division bench of Justices Dinesh Maheshwari and Krishna Murari said that such a direction of the High Court to a mother, who had remarried after her first husband's death, to restore her child's original surname, was "almost mindless and cruel"."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 Bench said.The division bench opined that when a child is adopted into a new home, it is only logical that he takes the surname of the adoptive family."The direction of the High Court to include the name of the Appellant’s 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. 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," the Bench observed. .The instant case dealt with a custody battle between appellant-mother and the paternal grandparents of the child who in 2008 sought for the child's custody under the Guardians and Wards Act after the mother remarried.A trial court rejected the grandparents' plea for custody holding that it would not be sensible to separate the child from mother. It, however, granted limited visitation rights to the grandparents, which the High Court also upheld.The High Court also added the following two additional conditions:The mother shall complete formalities for restoring the original surname of the child to that of the biological father's (and not step-father) within a period of three months. Wherever records permit, the biological father's name shall be shown; if otherwise impermissible, the name of the present husband will be mentioned as step-father. Aggrieved by the additional conditions, the mother challenged the order in Supreme Court on the ground that the grandparents had never prayed for such conditions in their petition though the High Court added the same in its order. .The Supreme Court, at the outset, asked how a mother could be lawfully restrained from including her child into a new family with a new surname. "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," the Court said.The apex court held that while the High Court may have the power to intervene, it can be done 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 Bench also noted that the mother's second husband had formally adopted the child as per the Hindu Adoption & Maintenance Act, maintaining that a formal adoption process need not have taken place. It, therefore, set aside the High Court's directions as regards surname..Advocates Ravi Bassi and Surender Kumar Gupta represented the appellant.[Read Judgment]