Mother can always decide surname of her child

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Shubham Budhiraja[1]

A married B and a child are born out of wedlock. While child was 2 months old, Husband B died. A married C and changed the surname of child with that of new father C. Biological Grandparents of Child petition under Guardianship act seeking them self as Guardian of Child. The trial court dismissed the petition calling mother as natural guardian. The High Court in appeal directed the mother to change the surname of child to that of deceased biological father. Hon'ble Supreme Court held that mother is a natural guardian. She can give the child in adoption and can decide the surname of child. It is not in child interest to keep the surname of biological father when he is given in adoption to a new father and has joined a new family.[2]

 

(I)                 In the case of Githa Hariharan and Ors. vs. Reserve Bank of India and Ors., Hon’ble Court observed 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.

 

(II)               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’.

 

(III)             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 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.

 

 

 


[1] Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Founder & Secretary of NGO, Shaurya Ek Samman, Budhirajalawchambers@gmail.com

[2] CIVIL APPEAL NOS. 6325-6326 OF 2015

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