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Name change of child from previous marriage

(Querist) 15 February 2014 This query is : Resolved 
Hi ,

I'm a Catholic man recently married to a Sikh divorcee with a 8 year daughter. My wife was married under the Hindu Marriage act. As per her divorce agreement , she has custody of the child.
My wife has uses my name . I would like advise on how we can change the surname of the child .

Devajyoti Barman (Expert) 16 February 2014
You can not do that unless her biological gives consent to this.
Dr. Jyothi Vishwanath (Expert) 16 February 2014
Agreed to expert.
Guest (Expert) 16 February 2014
Maximum you could be a guardian only.
ajay sethi (Expert) 16 February 2014
father consent is necessary for change of surname of child
Guest (Expert) 16 February 2014
The Child might even object the same when it is Adult.Better leave it as it is.
Rajendra K Goyal (Expert) 16 February 2014
Agree, consent of father is necessary.
Anirudh (Expert) 16 February 2014
Dear Mr. Devajyoti, Ajay and R.K.Goyal, what is the legal basis for saying that the father's consent is required? Where from do we get this?
Guest (Expert) 16 February 2014
@ Author: Any Academic Query to the Experts from others could be posted as a separate query with out disturbing the Thread of other Querist/Authors Please.
ajay sethi (Expert) 16 February 2014
Whose name is it anyway?
TNN Jul 29, 2011, 12.00am IST

(Whose name is it anyway?…)
After a divorce, if the woman remarries, whose last name should the child have – the biological father's or the foster father's?

Divorce is a social reality that couples - and their children - are increasingly having to deal with. One of the tricky questions that families dealing with divorce have to face is whether a mother, after the separation, can change the name of her kids after remarrying. A few months ago, a Mumbai doctor appealed for permission in the Bombay High Court to let her twin daughters take her new husband's name, which is being opposed by her ex-husband and the biological father of the children; this, despite the fact that custody was granted to the mother after divorce.

The legal view

Sunil Mittal, vice chairman of the Delhi Bar Council, says, "Although there is no codified law, irrespective of the status of the marriage, the children take on the father's second name. The biological father has the right to obtain a stay order if their second name is being changed. The only way out I see is that the new couple (biological mother and foster father) legally adopt the children, but that too, has to be done with the consent of the biological father."

Advocate Mukesh Anand explains, "Once the mother has custody, the kids' last name is her decision. The law is not very strict about it. But if the father is providing alimony, he may have a say. On moral grounds, he cannot object to the change, or a lot will be taken into consideration, such as the reason for divorce, the father's influence over the kids, etc. Also, after 18 years of age, the child can keep whatever name he/she wants."

What the kids say

But what do children who are caught in such cases think about it? Rachna, 22, who lives with her divorced mother, says, "I still add my father's second name to my name. Although I mulled over dropping the second name, I decided otherwise, since it would've been too much of a legal tangle. I don't know much about law, but it would help if they allowed the mother to have the right to change/drop the child's second name after the separation."

Says scriptwriter Shantanu Ray Chibber, "My parents got divorced when I was five. My mom decided not to drop her ex-husband's surname from my name, but they both agreed that once I grew up, I could make my own choice. Now, at 34, I have also taken my stepfather's surname, he has done a lot for me in my life and as a token of gratitude, I have taken up this screen name. I'm not very sure about the legality, but I know that my stepdad has legally adopted me and now I am carrying both my dads' names."

"It's been ten years since my divorce, but my son Subhro still carries the last name of my ex-husband," says advertising professional Rita. "My sons have different surnames now, but it's up to Subhro to change his name in the future. Even if you do change your children's last name, you won't be changing the legally recognised identity of their father. Nor will a name change affect the rights or duties of either parent regarding visitation, child support, or rights of inheritance," she adds.

Abhi, 27, who's in the middle of a divorce but has no kids, believes that the mother knows best. "The mother has the right to change the name of the kids after divorce if she is their custodian, because she's the mother, she obviously knows what's good and bad for them. On the other hand, if the custody of the kids were with the dad, he'd have a say in their last name."
Anirudh (Expert) 16 February 2014
Dear Mr. Ajay,
Thank you very much. I just wanted to know and Mr. Sunil Mittal's statement that "Although there is no codified law" is important for me. Thank you once again.
V R SHROFF (Expert) 16 February 2014
Q: what is the legal basis for saying that the father's consent is required? Where from do we get this?

Pl go thru Sec 6 Hindu Minority & Guardianship Act,1956. Ans: Father.
Also see Guardians & Wards Act.
Search -Dig out few Citations.. / Authorities..
u will get your Answer, with authority.
BOMBAY high court DIRECTED: no change in surname

Views are not binding, Laws are binding..
ajay sethi (Expert) 16 February 2014
CHILD ACCESS & CUSTODY GUIDELINES-Approved by Hon’ble Bombay High Court
January 23, 2012

A serious need is felt for approaching the Hon’ble Principal Judge Family court to set proper guidelines for the Family Courts regarding access, visitation and custody, as this will help in disposing off the cases quickly in a scientific manner ensuring that the right of the child to be showered with the love and affection of both the parents is not lost or delayed.
I. Under Section 10(3) of the Family Courts Act the Principal Judge has the
powers to frame rules.

23.NAME OF THE CHILD & SURNAME: The custodial parent shall not be entitled to change the name or the surname of the child which has been given to the child as per either a ceremony performed for the same or the name along with the father’s surname as it appears in the birth certificate.
Murali Krishna (Expert) 16 February 2014
Kudos to Mr.Ajay Sethi. Instead of simply pooh-poohing the innocuous question as an academic query, Mr.Ajay Sethi brought out the real problem by way of this article to show that there are many who need a legal solution, may be for myriad reasons. Once again thanks to Mr. Ajay Sethi.
ajay sethi (Expert) 16 February 2014
MR anirudh

as per guidelines framed by family court in maharashtra after approval of boombay high court no change in surname can be made of the child
Anirudh (Expert) 16 February 2014
Thank you once again Mr. Ajay for such an enlightening background.
V R SHROFF (Expert) 16 February 2014
Pointing out Legal basis, for chg of surname, as reqd by u, did not help u??
Guest (Expert) 16 February 2014
@ Author;Maximum you could be Guardian Only.
ajay sethi (Expert) 16 February 2014
thanks for your appreciation mr anirudh . i am avid reader of your replies on various queries and it is an honour to answer any queries raised by you .
Anirudh (Expert) 16 February 2014
Dear Mr. Shroff,
I am not able to understand as to what you mean by saying: "ANIRUDH,
Pointing out Legal basis, for chg of surname, as reqd by u, did not help u??"
Particularly I do not understand your query "Did not help u?"
Peter (Querist) 16 February 2014
Hello All,

I didn't expect so many responses - so thank you for taking time to respond.

Ajay , your responses though detailed has left me confused. My apologies if I haven't understood clearly.. so , Is it possible to change the surname ? if so , whats the procedure ? Is the biological fathers consent required?

Guest (Expert) 16 February 2014
@Author If you could complete the Adoption formalities with the consent of biological father then you could be replaced as father in Records
Peter (Querist) 16 February 2014
Thank you Narasimha ,

Do I need to appoint a lawyer for this? We are based in Mumbai
Guest (Expert) 16 February 2014
Better Consult a good lawyer to complete it perfectly and try to take the consent of biological father amicably so that he would co could even get the formalities done at the place of biological father also if he doesn't wish to travel for this.Your good intention is appreciated
Guest (Expert) 16 February 2014
Consulting a lawyer I do not mean that you have to go to Court again for this.Adoption documents to be filed with concerned authorities where the presence of both your self and biological father would be required.
Guest (Expert) 16 February 2014
@Author Any other doubts please
prabhakar singh (Expert) 16 February 2014
In Mumbai even name change would not be possible without cooperation of ex-husband of your wife and for adoption consent of ex-husband would be required every where in India,unless there is state amendment to the contrary.
ajay sethi (Expert) 16 February 2014
you need biological father consent for change in surname of the son . even if you desire to adopt the child you would need consent of both the parents .even if mother gives her consent for adoption of child the biological father can challenge the same .
Guest (Expert) 16 February 2014
@ Author Thanks for your appreciation
prabhakar singh (Expert) 16 February 2014
We should not give so much importance to Mr.Sunil Mittal's answers' to his interview that there is no codified law in this respect.
A divorcee father is bound to maintain a daughter till she attained legal age of marriage and is virtually married by him.
When there is a responsibility then there is a right is reciprocal of what we call when there is right there is responsibility.A biological father is natural guardian in law irrespective of custody,then he has a right preserved about his child name till she attains majority is the only logical and equitable deduction of jurisprudence.
prabhakar singh (Expert) 16 February 2014
Hence i am not convinced with reply of Mr.Sunil Mittal.
Anirudh (Expert) 16 February 2014
Dear Mr. Prabhakar Singh,
Pl. do not get me wrong. I was anxious to know whether there was any legal basis - meaning thereby whether there is any legislation governing the subject matter.
Mr. Sethi, gave me a convincing answer. I am satisfied about the background on the basis of which his reply was based. Simultaneously, I was also equally relieved that I had not missed any legal provision as such. This is just to get myself reassured. In case there was any legislation governing the subject, then in that event, I would have added the same to my knowledge base. That's all.

The fact remains that there is no codified law on the subject (Mr. Sunil Mittal's statement is important only for that aspect, and not for any other purpose), but there is a prevailing practice to insist upon the consent of the biological father - may be on more than one ground and reason - and there is also Bombay Court practice. That is fine.

I hope I have made myself clear to you.

I take this opportunity once again to thank Mr. Sethi for he never says anything without something to back him, that is also one of the reasons that I sought clarification from him as I was sure, he will provide and that will enrich me.
Advocate. Arunagiri (Expert) 16 February 2014
Mr. Ajay,

It seems that the High Courts guidelines are for custodial parents.

A custodial parent is the parent who is given physical or legal custody of a child by court order. There are two kinds of custody: legal custody and physical custody.

Custody battles most often arise in a divorce or separation, requiring a court's determination of which parent, relative or other adult should have physical and/or legal control and responsibility for a minor (child) under 18.

Do you think this applies to the adopted father.
prabhakar singh (Expert) 16 February 2014
Dear Mr.Anirudh!
I can never understand you wrong because GOD has given me sense to differentiate between wrong and right.
By the way how you would like to analyse the last sentence of the preceding post:
"Do you think this applies to the adopted father."
Is it really a sensible Q???????????
Gone yet present i am but those present are
seems to have gone.
prabhakar singh (Expert) 16 February 2014
Mr.Sethi is not only genius but most humble too is the opinion i hold about him.
ajay sethi (Expert) 16 February 2014

i am no genius .membership of LCI has brought me in contact with stalwarts like you MR Ramchandran/Mr Anirudh/ Dhingraji and others . it has helped me in enriching my knowledge of law and am grateful for the opportunity that LCI has awarded me .
Rajendra K Goyal (Expert) 17 February 2014
Respected prabhakarsinghji.

I second and agree with your views about ajay sethi ji.
T. Kalaiselvan, Advocate (Expert) 18 February 2014
Even I agree that Mr. Ajay Sethi who is really knowledgeable in many aspects of law and his excellent opinions/suggestions and prompt replies are highly appreciable and the present explanation is one such example and the same was rightly opined by expert Mr. Murali Krishna read as " Mr.Ajay Sethi brought out the real problem by way of this article to show that there are many who need a legal solution, may be for myriad reasons " I hold him in high esteem while I appreciate the humbleness showed by learned expert Mr. Prabakar Singh to promptly appreciate Mr. Sethi.
Now to the author's query, I too endorse that change of title of the adopted son cannot be done without or with the consent of the biological father, but for adoption, the consent of the biological father has to be obtained.
Advocate. Arunagiri (Expert) 18 February 2014
"By the way how you would like to analyse the last sentence of the preceding post:
"Do you think this applies to the adopted father."
Is it really a sensible Q???????????"

I am reproducing the comments, One of the above expert commented on my post.

Even after repeated advises, they have not stopped commenting on others.

I am suggesting the expert, who commented on me, please confine your replies, do not comment on others including me.

It may bounce back.

I think he will stop this from today atleast.

I am not here for a street fight.

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