Can Mother Decide Surname of the Child & Give the Child For Adoption

Can Mother Decide Surname of the Child & Give the Child For Adoption

In an interesting case at Supreme Court, the question was can a mother has right to give the surname to the child and give the child for adoption ? In specific, the issues before the Supreme Court were:

 

I. Whether 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. Can she give him the surname of her second husband whom she remarries after the death of her first husband and can she give the child for adoption to her husband?

II. Whether the High Court has the power to direct the Appellant to change the surname of the child especially when such relief was never sought by the respondents in their petition before the trial Court?

In this case, the appeal has been filed by the appellants challenging the judgment passed by the High Court of Andhra Pradesh. In this appeal, the subject matter of dispute between the mother and the parents of the deceased father of the child (grandparents) is the surname given to the child.

Supreme Court opined that 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 bench of Justices Dinesh Maheshwari And Krishna Murari stated that “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 bench stated that “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. There is 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.”

While dealing with the second issue the Supreme Court stated that relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to a miscarriage of justice.

Supreme Court reiterated that “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 for adoption.

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.”

In view of the above, The Supreme Court allowed the appeal and set aside the judgment passed by the High Court.

The Supreme Court ruled that 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 for adoption.