Shashwati Chowdhury
Published on: July 29, 2022 at 19:06 IST
The Supreme Court stated that the mother, who is the child’s only natural guardian, has the right to decide the child’s surname and to give up the child for adoption.
Thus, the Andhra Pradesh High Court’s direction to a mother to restore her son’s stepfather’s surname to his own surname was set aside by the Supreme Court.
A Division Bench of Justices Dinesh Maheshwari and Krishna Murari said that it was “almost mindless and cruel” for the High Court to order a mother who had remarried after the death of her first husband to give her child his or her original surname restored.
The Bench said, “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 grandparents on the child’s paternal side sought custody of the child in 2008 under the Guardians and Wards Act when the mother remarried, the instant case dealt with that.
The grandparents’ plea for custody was denied by a trial court, which concluded that separating the child from the mother would not be sensible. However, it gave the grandparents only limited visitation rights, which the High Court also upheld.
Aggrieved by the additional restrictions, the mother challenged the order to the Supreme Court on the grounds that the grandparents had not prayed these conditions in their petition, despite the fact that the High Court had added them in its order.
The Supreme Court initially asked how a mother could be legally restrained from including a new family and giving their child a new surname name.
The Supreme Court held that while the High Court may have the power to step in, it can only do so in response to a prayer specific to that effect, which must be based on the idea that the best interests of the child are primary consideration and take precedence over all other factors.
Asserting that no formal adoption procedure was necessary, the Bench further noted that the mother’s second husband had legally adopted the child in accordance with the Hindu Adoption & Maintenance Act.
Therefore, it set aside the High Court’s directions on surname.