After biological father's death, mother can decide child's surname, can also give surname of her second husband: Supreme Court

Read Time: 10 minutes


"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", the Top Court observed.

The mother, who is the only natural/legal guardian of the child after the death of the biological father, can decide the surname of the child and can give him the surname of her second husband whom she remarries after the death of her first husband, the Supreme Court has held.

Court has further held that the mother can also give the child for adoption to her second husband.

A bench of Justice Dinesh Maheshwari and Justice Krishna Murari further relied on the case of Githa Hariharan and Ors. vs. Reserve Bank of India and Ors. wherein the top court had 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.

In case before the court, a dispute between the mother and the parents of the deceased father of the child (grandparents) in changing the surname given to the child was argued.

While the issue of visitation rights was also advanced in the pleadings, no arguments were made in Court regarding same and the Court has thus not considered the impugned judgment of the High Court on the said aspect.

Mrs Akella Lalitha (mother) had married one Konda Balaji in 2003. After their son was born in March 2006, the husband died three months later.

At that time the child was merely 2 ½ months old. Thereafter, Lalitha married Sri Akella Ravi Narasimha Sarma, a Wing Commander in IAF a year later. Out of this wedlock, the couple had a child and they live together. The child from Lalitha's first marriage, Master Ahlad Achintya is still a minor aged 16 years and 4 months.

The grandparents had, in 2008, filed a petition under Section 10 of the Guardian and Wards Act, 1890 for appointing them as Guardians of Master Ahlad Achintha, which was dismissed by the trial court.

In appeal before the High Court, the grandparents brought to the notice of the High Court that the surname of the child was changed from Konda to Akella.

While holding Lalitha to be the guardian, High Court directed her to restore the surname of the child to Konda.

The Top Court while holding the High Court to be in the wrong held that 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.

"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'", the Court has observed.

Referring to the High Court's direction to include the name of Lalitha's second husband as step-father in documents, Court called it out to be 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. We, therefore, see nothing unusual in Appellant mother, upon remarriage having given the child the surname of her husband or even giving the child in adoption to her husband", the division bench further observed.

With regard to Lalitha's submission that on 12th July, 2019, during the pendency of the present petition, her husband had adopted the child by way of a Registered adoption deed, Court said that when a 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 top court further held that while directing for change of surname of the child, the High Court traversed beyond pleadings and such directions were liable to be set aside.

While concluding, the top court clarified that,

"....the mother being the only natural guardian of the child has the right to decide the surname of the child.....The Court may have the power to intervene but only when a prayer specific to that effect is made and such prayer must be centered on the premise that child’s interest is the primary consideration and it outweighs all other considerations."