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SUPREME COURT OF INDIA
DINESH MAHESHWARI, KRISHNA MURARI, JJ.
Mrs. Akella Lalitha – Appellants
VERSUS
Sri Konda Hanumantha Rao & Anr. – Respondents
Civil Appeal Nos. 6325-6326 of 2015
Decided On : 28-07-2022
(A) Guardian and Wards Act, 1890 – Section 10 – Hindu Adoptions and Maintenance Act, 1956 – Section 6 – Surname of child – Right of mother to decide – Mother is natural guardian of child after demise of father – 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 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’ – Direction of High Court to include name of Appellant’s husband as step-father in documents is almost cruel and mindless of how it would impact mental health and self-esteem of 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 factum of adoption and expose the child to unnecessary questions hindering a smooth, natural relationship between him and his parents – There is nothing unusual in Appellant mother, upon remarriage having given the child surname of her husband or even giving the child in adoption to her husband. (Paras 6, 10 and 11)
(B) Civil Procedure Code, 1908 – Order VI Rule 1 – Guardian and Wards Act, 1890 – Section 10 – Hindu Adoptions and Maintenance Act, 1956 – Section 6 – Grant of relief – Relief not founded on pleadings should not be granted – If Court considers or grants a relief for which no prayer or pleading was made depriving respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice – Mother being only natural guardian of child has right to decide surname of child – She also has right to give child in adoption – Court may have power to intervene but only when a prayer specific to that effect is made and such prayer must be centered on premise that child’s interest is primary consideration and it outweighs all other considerations – Directions of High Court so far as surname of child is concerned, set aside. (Paras 15 and 19)
Facts of the case:
Present appeals impugn common final judgment dated 24.01.2014 in F.C.A. no. 236 of 2011 filed by the respondents and F.C.A. No. 403 of 2012 filed by the appellant; passed by High Court of Andhra Pradesh. In these appeals, the subject matter of dispute between the mother and parents of the deceased father of the child (grandparents) is the surname given to the child. While the issue of visitation rights was also advanced in pleadings, no arguments were made in Court regarding same.
Primary issues that require adjudication are :-
I. Whether the mother, who is the only natural/legal guardian of child after the death of the biological father can decide 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?
II. Whether the High Court has the power to direct the Appellant to change the surname of the child specially when such relief was never sought by the respondents in their petition before trial Court?
Findings of Court:
In this case while directing for change of surname of the child, High Court has traversed beyond pleadings and such directions are liable to be set aside on this ground.
Result : Appeals allowed in part.
JUDGMENT
Krishna Murari, J.
1. These appeals impugn common final judgment dated 24.01.2014 in F.C.A. no. 236 of 2011 filed by the respondents and F.C.A. No. 403 of 2012 filed by the appellant; passed by the High Court of Andhra Pradesh. In these appeals, the subject matter of dispute between the mother and the parents of the deceased father of the child (grandparents) is the surname given to the child. While the issue of visitation rights was also advanced in the pleadings, no arguments were made in Court regarding same and therefore we have not considered the judgment of the High Court on the said aspect.
Brief facts
2. The Appellant married Konda Balaji, son of respondents, on 18.12.2003. A Child was born out of the wedlock on 27.03.2006. However, the husband of the Appellant expired on 14.06.2006. At the time the child was merely 2 ½ months old. Thereafter, the Appellant married Sri Akella Ravi Narasimha Sarma, a Wing Commander in IAF on 26.08.2007. Out of this wedlock, the couple had a child and they live together. Presently, the child Master Ahlad Achintya is still a minor aged 16 years and 4 months.
3. On 9th April, 2008, the respondents had filed a petition under Section 10 of the Guardian and Wards Act, 1890 for appointing them as Guardians of Master Ahlad Achintha, son of the appellant. At the time of filing the petition the child was aged about 2 years old and the respondents made the following prayer:
b) To grant visiting rights of the minor child pending disposal of O.P.
c) For costs of the petitioner, and
d) For such other relief or reliefs as this Hon’ble Court deems fit and proper in the circumstances of the case and in the interest of justice.
4. The Trial Court vide Order dated 20.09.2011 dismissed the Petition filed by the respondents and was of the opinion that it would not be appropriate to separate the child from the love and affection of his mother. The Trial Court also took into account the old age of the Respondent grandparents. It however, granted visitation rights to the respondents and directed the Appellant and her husband to bring their child to the house of her parents at Hyderabad once in three months in the end preferably on Dussehra and Deepavali festivals and Sankranthi festival days and during school vacations. The respondents were permitted to see their grand son during such period for 2 days from sunrise to sunset.
5. The Order of the Trial Court was challenged in appeals before the High Court by both the parties. During the course of arguments, it was brought to the notice of the High Court that the surname of the child was changed from Konda to Akella. The High Court disposing of the petition vide common judgment dated 24.01.2014 passed the following directions:
b) The Appellant shall complete the formalities for restoration of the surname and father’s surname of the child within a period of three months from the date of receipt of a copy of this order; and
c) So far as the name of the father of the child is concerned, it is directed that wherever the records permit, the name of the natural father shall be shown and if it is otherwise impermissible, the name of Ravi Narasimha Sarma, shall be mentioned as step-father.
This common judgment of the High Court is challenged by the appellant in the present appeals. The primary issues that require adjudication are :-
(1) Surname of child – Mother is natural guardian of child after demise of father – There is nothing unusual in Appellant mother, upon remarriage having given the child surname of her husband or even....
The court upheld minors' rights to change their surname for emotional wellbeing and identity consistency, overriding prohibitive regulations by emphasizing best interests.
Adoptive parents have the right to change the name of their adopted child in the Birth Register, supported by the provisions of the Hindu Adoptions and Maintenance Act, 1956, without the need for exc....
The presumption of valid adoption under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 applies unless disproved, and the Registrar has the power to correct birth certificate entries unde....
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