Mother's Right to Decide Surname of Child

• 06 Aug 2022

For Prelims: Guardianship Laws in India

For Mains: Supreme Court Judgments on guardianship

Why in News?

Recently, the Supreme Court ruled that the mother, being the only natural guardian of the child after the death of the biological father (husband), has the right to decide the surname of the child.

• The court was dealing with a plea challenging a judgement passed by the High Court of Andhra Pradesh in January 2014, which asked to restore the child’s surname to the previous one and to show the name of the late husband in records as his natural father and if that is not possible, to mention the new husband as his stepfather.

What did the SC Rule?

• Surname is not only indicative of lineage and should not be understood just in the context of history, culture and lineage but more importantly the role it plays 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 SC also opined that the mother, being the only natural guardian, also has the right to give up the child in adoption.

What are the Laws Related to Guardianship in India?

• Hindu Minority and Guardianship Act:
  • Indian laws accord superiority to the father in case of guardianship of a minor (below the age of 18 years).
  • Under the religious law of Hindus, or the Hindu Minority and Guardianship Act, (HMGA) 1956, the natural guardian of a Hindu minor in respect of the minor’s person or property “is the father, and after him, the mother.
    • Provided the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.”
• Guardian and Wards Act of 1890 (GWA):
  • It deals with the appointment of a person as a ‘guardian’ to a child, both with respect to the child and property.
  • Child custody, guardianship and visitation issues between parents are determined under the GWA, if a natural parent wants to be declared as an exclusive guardian to his/her own child.
  • Upon disputes between parents in a petition under the GWA, read with the HMGA; guardianship and custody can be vested with one parent with visitation rights to the other parent.
  • In doing so, the welfare of the minor or “best interests of the child” shall be of paramount consideration.

What is Understood by 'Best Interests of the Child’?

• India is a signatory to the United Nations Convention on the Rights of the Child (UNCRC).
• The definition of “best interests of the child” has been incorporated from the Juvenile Justice (Care and Protection of Children) Act, 2015.
• The “best interests of the child” means “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development” and is paramount in any custody battle.

• Muslim Personal Law (Shariat) Application Act, 1937:
  • It says that the Shariat or the religious law will apply in case of guardianship according to which the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty though the father’s right to general supervision and control exists.
  • The concept of Hizanat in Muslim law states that the welfare of the child is above all else.
  • This is the reason why Muslim law gives preference to the mother over father in the matter of custody of children in their tender years.
• Supreme Court Judgements:
  • The Supreme Court’s landmark judgement in Githa Hariharan v. The Reserve Bank of India in 1999 provided partial relief.
  • In this case, the HMGA was challenged for violating the guarantee of equality of sexes under Article 14 of the Constitution of India.
    • Article 14 says that no person shall be denied treatment of equality before the law or the equal protection of the laws within the territory of India.
  • The court held that the term “after” should not be taken to mean “after the lifetime of the father “, but rather “in the absence of the father”.
    • However, the judgement failed to recognise both parents as equal guardians, subordinating a mother’s role to that of the father.
  • Though the judgement sets a precedent for courts, it has not led to an amendment to the HMGA.

Way Forward

• A child-centric human rights jurisprudence that has evolved over a period of time is founded on the principle that public good demands proper growth of the child, who is the future of the nation.
  • Therefore, shared or joint parenting with equal rights can be a viable, practical, balanced solution for the child’s optimal growth.
• The Law Commission of India in its 257^th report on “Reforms in Guardianship and Custody Laws in India” in May 2015 recommended that the “superiority of one parent over the other should be removed”.
  • Both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor.
  • The HMGA should be amended to “constitute both the father and the mother as being natural guardians ‘jointly and severally,’ having equal rights in respect of a minor and his property.

Source: IE