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SC allows child to take stepfather’s name, grants mother exclusive custody
A child’s wish to bear the name of the man who lives with and cares for her became a decisive factor in an unusual intervention by the Supreme Court.
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A child’s wish to bear the name of the man who lives with and cares for her became a decisive factor in an unusual intervention by the Supreme Court. The court rewrote the terms of their earlier settlement, considering it in the best interests of their child with special needs, including permitting her to take the name of her stepfather, follow the religion of her present household, allowing her mother to alter her school and identity records and give the mother her exclusive custody.
A bench of justices JB Pardiwala and K Vinod Chandran, after interacting extensively with the child and both parents, invoked Article 142 of the Constitution to set aside the terms of a 2018 memorandum of settlement while retaining the decree dissolving the marriage by mutual consent.
The order is notable because the court did not merely settle the immediate dispute between the divorced parents but it also altered the framework governing the child’s custody, identity and upbringing that the parents had agreed to at the time of their divorce.
The original settlement provided for joint custody and visitation rights to the father. It also recorded an undertaking by the mother that the child would be brought up according to the father’s religion — Islam, as the parents belonged to different communities.
But following the parents’ remarriages and the circumstances that emerged during the court’s interaction with the child, the bench concluded that continuing those arrangements would not serve her well-being.
“We cannot but bow down to the desire expressed by the child,” said the bench, referring to the child’s wish, communicated through her mother, to have the name of the man who now lives with and cares for her.
The court noted that the child had developed a close affinity to her stepfather and had questioned her mother about why she could not have the name of the father who lived with her and looked after her, as was the case with her friends.
The bench consequently gave the mother exclusive custody and permitted her to make suitable changes in the child’s school and other records relating to her citizenship and identity “so as to align the child with the circumstances in which she is brought up”.
The court also took note of the mother’s plea that the earlier undertaking regarding the child’s religion had become difficult to sustain after the marriage had ended and that forcing the child to follow a different religion in the mother’s household would not be in her best interest. The bench said it was “persuaded by the entreaties made by the mother” and the peculiar circumstances of the case.
The intervention followed an extensive interaction with the child on August 20, after the court directed both parents to appear before it. The mother appeared in person with the child, while the father participated online from Dubai.
The bench recorded that the child, though “astute in understanding,” had “acute problems in adjustment”. It also noted that proceedings pending against the biological father for allegedly harassing and intimidating the daughter as well as contempt proceedings initiated by him over alleged denial of visitation rights appeared to have been imprinted in the child’s mind, while expressing “misgivings” about what had actually happened in view of her special needs.
The court said it was primarily concerned with the child’s well-being and feared that continuation of the legal proceedings could force her to relive an experience and expose both parents and their families to continuing trauma. It also found that continuation of the father’s visitation rights could be detrimental to the child because of the apprehension she had developed towards him.
“We can only hope that the seed of misgiving, against her father, implanted in the child’s mind does not catch roots and withers away in course of time,” said the bench, while holding that until then any association between them would run contrary to her well-being.
The court therefore brought the legal proceedings between the divorced couple to an end. In effect, the court preserved the parties’ decision to end their marriage but substantially recast the consequences of that settlement insofar as they affected the child, giving the mother exclusive custody and authority over the child’s identity and upbringing, while removing the visitation arrangement and the earlier commitments on her religious upbringing.
