The Supreme Court on Thursday said a mother, being the only natural guardian, has the right to decide the surname of the child, and even after the demise of her first husband, she cannot be restrained from including the baby in her new family and deciding its surname.
"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," a bench of Justices Dinesh Maheshwari and Krishna Murari said.
The bench, citing the case of 'Githa Hariharan and others vs Reserve Bank of India and others', pointed out the top court had then elevated the mother to an equal position as the father, bolstering her right as a natural guardian of the minor child under Section 6 of the Hindu Minority and Adoption Act, 1956.
Justice Murari, who authored the judgment on behalf of the bench, said, “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”.
The court said a surname refers to the name a person shares with other members of that person's family, and it 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," the bench added.
The top court set aside a 2014 Andhra Pradesh High Court direction to a mother to complete the formalities for restoration of the surname of the child with that of the father.
The woman’s first husband had died in 2006, when her child was only two-and-a-half-year-old. She remarried in 2007. The child’s grandparent, from father’s side, had urged the court to allow the child to use his biological father’s surname.
The high court had also passed a direction that the name of the natural father shall be shown and if it is otherwise impermissible, the name of the woman's second husband shall be mentioned as step-father. The woman moved the top court challenging the high court's directions. In July 2019, during the pendency of the present petition, the stepfather of the child adopted the child by way of registered adoption deed.