“Mother Has The Right To Give Her Child Surname Of Second Husband After Death Of Biological Father”: Supreme Court

“Mother Has The Right To Give Her Child Surname Of Second Husband After Death Of Biological Father”: Supreme Court

Despite the fact that a mother carries the child in her womb for 9 months, when the baby enters the world, he or she is given the surname of the father. No thanks to patriarchy. But what happens when the biological father of a child dies and the mother marries someone else? Whose surname does the child live with? Does the child take the biological father’s surname and live with the consequences of it or does the child take the name of the stepfather? What does the law say about it? Well, it looks like the child can take the stepfather’s name. Yepp, according to a recent Supreme Court judgement, when a mother remarries after the death of the biological father, she can decide the surname of the child and change it if she wishes.

The Supreme Court was hearing an appeal challenging the judgement of the Andhra Pradesh High Court that directed the mother to change her child’s surname and keep it as the biological father’s surname and show the name of her new husband in records only as a stepfather. Hearing the case, the Supreme Court bench comprising Justices Dinesh Maheshwari and Krishna Murari set aside the High Court judgement. The Apex Court noted that the judgement is almost “cruel” and does not consider the impact it will have on the mental health and self-esteem of the child.

In the abovementioned case, the Top Court was hearing an appeal of a case where there was a dispute between the mother (who remarried another man after the death of the biological father and her first husband) and the parents of the biological father of the child with regards to the surname of the child. While disposing of an appeal that arose from a petition filed under Section 10 of the Guardian and Wards Act, the Andhra Pradesh High Court had directed the mother to restore the surname of the child to the biological father’s name wherever the records permit and if impermissible, the name of her new husband shall be mentioned as step-father after which the mother approached the Supreme Court.

Also Read: Kids Of Unwed Mothers, Rape Victims Have Right To Dignity, Can Keep Only Mother’s Name In Documents: Kerala High Court

The Apex Court evaluated the issues raised in the case that questioned whether the mother, who is the only natural and legal guardian of the child after the death of the biological father, can decide the surname of the child and give him her second husband’s surname and if she can allow her second husband to adopt the child. The court also tried to understand if the High Court had the power and jurisdiction to direct the mother to change the surname of the child keeping in mind that such relief was never sought by the grandparents of the child in their petition before the court.

Making an observation in the case, the Supreme Court stated that since the mother is the natural guardian after the death of the biological father, she cannot be lawfully restrained from including her child in the new family and changing his or her surname. The Apex Court noted that Surname is important for the child as it refers to the name a person shares with other members of their family. Apart from being indicative of lineage, surname also plays an important role in terms of social reality. The Top Court further observed that a child derives his identity from his name and a difference in the family name would be a constant reminder of the fact that he’s adopted and affect his relationship with his parents.

Also Read: “Woman Can’t Be Denied Abortion Of Unwanted Pregnancy Because She’s Unmarried”, Says Supreme Court

In this case, the second husband of the mother had legally adopted the child. Taking note of the same, the Supreme Court was quoted by Live Law saying, “It’s 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 bench further noted that in today’s time, adoption aims to give a child a family after he or she is deprived of the biological family while overturning the High Court’s order and allowing the mother the right to decide the surname of the child. Well, this is a much-needed landmark judgement that we all needed in 2022. This is yet another step in the right direction.

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Janvi Manchanda

​​She uses her pen to slice through patriarchy. She could be Geet one day, Wednesday Addams next. Writing is the bane of her existence and the object of all her desires!

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