Friday, July 29, 2022

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

The Supreme Court on 28/07/22 observed that the mother being the only natural guardian of the child has the right to decide the surname of the child, and also give the child up for adoption. (Akella Lalitha vs Konda Rao and ors).

a direction of the Andhra Pradesh High Court to a mother to restore her child's original surname from his stepfather'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 instant case dealt with a custody battle between the 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.

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