Children now have a choice. They can take either parent’s surname as convenient or desired.
By Adv Vinayak D Porob
In a landmark judgment the Supreme Court has decided that a mother is authorized to decide the surname of her child. The child need not always take the surname of his/her father.
THE issue of natural guardianship of a minor was much debated prior to the same being settled by the Supreme Court in the year 1999 by passing a reasoned judgment in Githa Hariharan & Others V/s Reserve Bank of India. This elevated the mother also to the status of a natural guardian of her child during the lifetime of the father. This is in view of the Constitutional provision envisaging Rule of Equality.
Initially, only the father was the natural guardian of a minor child and after the death of the father only, mother would be the natural guardian. The concept of legal guardianship includes a natural guardian, a testamentary guardian or a guardian of a Hindu minor appointed or declared by the court of law. Natural guardians are the parents now whereas a testamentary guardian is a person appointed by the will of the father or the mother.
INCIDENTALLY, the Constitution of India has introduced an equality code prohibiting discrimination on ground of gender or sex and having due regard to such a mandate guaranteed by the Constitution. I feel it is not justifiable to decry the rights of the mother to be declared as a natural guardian.
In cases of total apathy of the father towards his child, due to inevitable breakdown of marriage or for any other reason if the father is not capable, than under such circumstances in the interests of the minor child, it certainly would not be proper to maintain the father as a natural guardian.
Welfare of the child cannot be compromised and therefore the Supreme Court has rightly lifted the mother on par with the father as a natural guardian of a minor child. Now the next crucial and complicated issue which was before the Supreme Court for determination was that whether a mother, being a natural guardian, has the right to decide the surname of a minor child upon the death of the biological father and that too upon remarrying?
ISSUE OF RE-MARRIAGE
THE Court answered the issue in the affirmative and there were cogent reasons for this. Amidst objections from the biological father’s parents to give the child the surname of her husband upon the mother remarrying, the Court held that it is nothing unusual for the mother upon remarriage giving the child the surname of her husband or even giving the child in adoption to her husband. Upon the death of the father custody of the minor child is always with the mother, irrespective of her status being still a widow or if remarries.
Since the custody of the minor is with the mother, a child living with the mother after her re-marriage in a family with different surname, would certainly have an adverse impact on the mental health and self-esteem of a child. A child derives identity from his or her name. Similarly, upon the child being adopted by the person remarrying the mother, the difference in name from his adopted family would act as a constant reminder of the factum of adoption. This could hamper a smooth relationship between the child and his parents. Adoption indicates the transfer of a child from old kinsmen to the new as the child ceases to be the member of his biological father once legally adopted.
An adopted child is similar to that of a new born child as upon adoption the child derives all the rights and liabilities of a new born child. Considering the fact that while determining the issue of the mother’s right to decide the surname of the child, the Supreme Court considered the fact of adoption of the child by the person re-marrying the mother and allowed the mother to change or decide the surname of the child.
I feel things would be different if the person re-marrying the mother had not adopted the child. In cases where irresistible assets are inherited by the child from the biological father, than would it be in the interests of the minor to be inducted by adoption in the family of the person re-marrying the mother? After the death of the biological father is an issue which did not come up for discussion before the Supreme Court.
MINOR’S INTERESTS SUPREME
ULTIMATELY, the interests of the minor has to be seen from all angles, that is financial, mental, psychological and physical, as mother’s re-marriage should not at any cost be curse than a boon to the minor. In my opinion there should be parameters fixed in granting liberty to the mother in changing the name of the minor child upon her re-marriage after the death of the biological father of the minor.
So also there should be strict parameters fixed in regulating the mother’s right upon remarrying to give the child in adoption, as the mother’s future prospects should not be a hindrance and a reason for the child upon growing up to repent and regret. Considering the welfare of the child and in order to settle the grey areas still existing over the issue, I hope someday this emotional and complicated issue comes up before the Supreme Court again in the interests of minor children whose life, wellbeing and rights are at stake.
(This article is the personal opinion of the writer who is practicing as an advocate at Mapusa-Goa.)