The answer is given by supreme court in recent decision of Akella Lalitha vs Konda Hanumantha Rao, 2022.
In the case, the dispute was between the mother and the parents of the deceased father of the child (grandparents) over the surname given to the child.
In the case, grandparent field a petition under section 10 of guardian and wards act, 1890, to be appointed as guardian of the child.
The question before the supreme court was 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?
Court’s answer
Before writing the final decision, the court looked upon the following provisions of ‘Hindu adoption and maintenance Act, 1956’-
Section 6 of the Hindu Adoption and Maintenance Act, 1956 provides as under: –
The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are
(a) in the case of a boy or an unmarried girl the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;
(c) in the case of a married girl the husband.
Section 9(3) of the Hindu Adoption and Maintenance Act, 1956 provides that,
The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.
The court further referred the case of ‘Githa Hariharan and Ors. vs. Reserve Bank of India and Ors. 1999, in which, this Court 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.
After referring the authorities, the court said,
“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 further criticized the decision of high court in this case, and said,
“The direction of the High Court to include the name of the Appellants 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. 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.”
Step-father as legal guardian?
In the present case the Appellant submitted that, during the pendency of the present petition, the husband of the Appellant/ step father of the child adopted the child by way of Registered adoption deed.
Section 12 of the Hindu Adoption & Maintenance Act, 1956 provides that An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.
The court said,
“Adoption deed is not necessary to effect adoption and the same can be done even through established customs.”
The position of an adopted Child
According to the Encyclopaedia of Religion and Ethics–
Adoption indicates the transfer of a child from old kinsmen to the new. The child ceases to be a member of the family to which he belongs by birth. The child loses all rights and is deprived of all duties concerning his natural parents and kinsmen. In the new family, the child is like the natural-born child with all the rights and liabilities of a native-born member.
Therefore, when such 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 object of adoption
While the main object of adoption in the past has been to secure the performance of ones funeral rights and to preserve the continuance of ones lineage, in recent times, the modern adoption theory aims to restore family life to a child deprived of his or her biological family.
The decision of the court
The court finally decided that,
“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 Court may have the power to intervene but only when a prayer specific to that effect is made and such prayer must be cantered on the premise that child’s interest is the primary consideration and it outweighs all other considerations.”
Reference
Akella Lalitha vs Konda Hanumantha Rao, 2022