REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6325-6326 OF 2015

MRS. AKELLA LALITHA … APPELLANT (S)

VERSUS

SRI KONDA HANUMANTHA RAO & ANR. … RESPONDENT (S)

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

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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 9

th

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:

a) To appoint the petitioners as Guardians to the Minor Child

namely Ahlad Achintha, aged 2 years for their person.

b) To grant visiting rights of the minor child pending disposal of

O.P.

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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:

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a) The Appellant i.e., Akella Lalitha would be the natural guardian

of the child, but shall be under obligation to bring the child to

the residence of the respondents in such a way that the child

will be with them for a period of 2 days during winter vacation.

The respondents shall also be entitled to see the child in the

residence of the Appellant, with prior intimation;

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 :-

I.Whether the mother, who is the only natural/legal guardian of

the child after the death of the biological father can decide

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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?

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

the trial Court?

Issue I

6. Addressing the first issue, both the lower Courts have concurred

that the mother is the natural guardian of the child after the demise of the

father.

7. Section 6 of the Hindu Minority and Guardianship 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”.

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8. Section 9(3) of the Hindu Adoption and Maintenance Act, 1956

provides that,

“9(3) 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. “

9. In the case of Githa Hariharan and Ors. vs. Reserve Bank of

India and Ors.

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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 Guardianship Act, 1956.

10.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

1 MANU/SC/0117/1999

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environment. Homogeneity of surname emerges as a mode to create,

sustain and display ‘family’.

11.The direction of the High Court to include the name of the

Appellant’s 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.

12.While an adoption deed is not necessary to effect adoption and the

same can be done even through established customs, in the present case

the Appellant submits that on 12

th

July, 2019, 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

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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.”

13.According to the Encyclopedia 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.

14.While the main object of adoption in the past has been to secure the

performance of one’s funeral rights and to preserve the continuance of

one’s lineage, in recent times, the modern adoption theory aims to restore

family life to a child deprived of his or her biological family. Therefore, in

light of the above observations, the first issue is settled in favour of the

appellant.

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Issue II

15.Coming to address the second issue, while this Court is not

apathetic to the predicament of the Respondent grandparents, it is a fact

that absolutely no relief was ever sought by them for the change of

surname of the child to that of first husband/ son of respondents. It is

settled law that relief not found on pleadings should not be granted. If a

Court considers or grants a relief for which no prayer or pleading was

made depriving the respondent of an opportunity to oppose or resist such

relief, it would lead to miscarriage of justice.

16.In the case of Messrs. Trojan & Co. Ltd. Vs. Rm.N.N. Nagappa

Chettiar

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, this Court considered the issue as to whether relief not asked

for by a party could be granted and that too without having proper

pleadings. The Court held as under:-

"It is well settled that the decision of a case cannot be

based on grounds outside the pleadings of the parties

and it is the case pleaded that has to be found. Without

an amendment of the plaint, the Court was not entitled to

grant the relief not asked for and no prayer was ever

made to amend the plaint so as to incorporate in it an

alternative case.”

2 AIR 1953 SC 235

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17.In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan

Samadkhan Sindhi & Ors.

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held:

"Though the Court has very wide discretion in granting

relief, the Court, however, cannot, ignoring and keeping

aside the norms and principles governing grant of relief,

grant a relief not even prayed for by the petitioner."

18.In this case while directing for change of surname of the child, the

High Court has traversed beyond pleadings and such directions are liable to

be set aside on this ground.

19.Before parting with this subject, to obviate any uncertainty it is

reiterated that the 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

centered on the premise that child’s interest is the primary consideration and

it outweighs all other considerations. With the above observations the

directions of the High Court so far as the surname of the child is concerned

are set aside.

20.As a consequence, the appeals stand allowed in part.

3 AIR 2010 SC 475

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21.Looking to the nature of the case and the position of the parties, they

are directed to bear their own costs and expenses incurred in these appeals.

….......………….....………….,J

(DINESH MAHESHWARI)

…….…..........................J.

(KRISHNA MURARI)

NEW DELHI;

28

TH

JULY, 2022

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