MRS. AKELLA LALITHA versus SRI KONDA HANUMANTHA RAO & ANR. on 28 July 2022

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SUPREME COURT REPORTS

[2022] 6 S.C.R.

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MRS. AKELLA LALITHA

v.

SRI KONDA HANUMANTHA RAO & ANR.

(Civil Appeal Nos. 6325-6326 of 2015)

B

JULY 28, 2022

[DINESH MAHESHWARI AND KRISHNA MURARI, JJ.]

Family Law – Surname of child – Dispute between Appellant-mother and respondent-grandparents, (parents of deceased fatherCof the child) with regard to surname given to the child – WhetherAppellant-mother, who is the only natural/legal guardian of the childafter the death of the biological father can decide the surname ofthe child – Can she give him the surname of her second husbandwhom she remarried after the death of her first husband and canDshe give the child for adoption to her husband – Held: Appellant-mother being the only natural guardian of the child has the right todecide the surname of the child – She also has the right to give thechild in adoption – After demise of her first husband, being theonly natural guardian of the child, the appellant-mother cannot belawfully restrained from including the child in her new family andEdeciding the surname of the child – Nothing unusual in Appellant-mother, upon remarriage having given the child the surname of herhusband or even giving the child in adoption to her husband –Hindu Minority and Guardianship Act,1956 – s.6 – Hindu Adoptionand Maintenance Act, 1956 – s.9(3) and 12.

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Family Law – Surname of child – Dispute between Appellant-mother and respondent-grandparents (parents of deceased fatherof the child) with regard to surname given to the child – Appellant-mother remarried after death of her first husband – Whether HighCourt had the power to direct Appellant-mother to change theGsurname of the child specially when such relief was never soughtby respondents in their petition before the trial court – Held: TheCourt may have the power to intervene but only when a prayerspecific to that effect is made and such prayer must be centered onthe premise that child’s interest is the primary consideration and it H

outweighs all other considerations – While the Court is not apatheticto the predicament of the Respondent grandparents, it is a fact thatabsolutely no relief was ever sought by them for the change ofsurname of the child to that of first husband/ son of respondents –In this case while directing for change of surname of the child, theHigh Court traversed beyond pleadings and such directions areliable to be set aside on this ground – Hindu Minority andGuardianship Act, 1956 – s.6 – Hindu Adoption and MaintenanceAct, 1956 – s.9(3).

Family Law – Surname – Relevance of – Discussed.

Family Law – Adoption – Object in the past – Modernadoption theory – Held: While the main object of adoption in thepast has been to secure the performance of one’s funeral rightsand to preserve the continuance of one’s lineage, in recent times,the modern adoption theory aims to restore family life to a childdeprived of his or her biological family.

Pleadings – Grants of relief for which no prayer or pleadingwas made – If justified – Held: Relief not found on pleadings shouldnot be granted – If a Court considers or grants a relief for whichno prayer or pleading was made depriving the respondent of anopportunity to oppose or resist such relief, it would lead tomiscarriage of justice.

Partly allowing the appeals, the Court

Conclusion

HELD: 1.1. After the demise of her first husband, beingthe only natural guardian of the child one fails to see how themother can be lawfully restrained from including the child in hernew family and deciding the surname of the child. A surname refersto the name a person shares with other members of that person’sfamily, distinguished from that person’s given name or names; afamily name. Surname is not only indicative of lineage and shouldnot be understood just in context of history, culture and lineagebut more importantly the role it plays is with regard to the socialreality along with a sense of being for children in their particularenvironment. Homogeneity of surname emerges as a mode tocreate, sustain and display ‘family’. [Para 10][797-B-C]

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A1.2. The direction of the High Court to include the name ofthe Appellant’s husband as step-father in documents is almostcruel and mindless of how it would impact the mental health andself-esteem of the child. A name is important as a child deriveshis identity from it and a difference in name from his family wouldBact as a constant reminder of the factum of adoption and exposethe child to unnecessary questions hindering a smooth, naturalrelationship between him and his parents. Therefore, there isnothing unusual in Appellant mother, upon remarriage havinggiven the child the surname of her husband or even giving thechild in adoption to her husband. [Para 11][797-D-F]C

1.3. While an adoption deed is not necessary to effectadoption and the same can be done even through establishedcustoms, in the present case the Appellant submits that on12th July, 2019, during the pendency of the present petition, theDhusband of the Appellant/ step father of the child adopted thechild by way of Registered adoption deed. When a child takes onto be a kosher member of the adoptive family it is only logicalthat he takes the surname of the adoptive family and it is thusbefuddling to see judicial intervention in such a matter. Whilethe main object of adoption in the past has been to secure theEperformance of one’s funeral rights and to preserve thecontinuance of one’s lineage, in recent times, the modernadoption theory aims to restore family life to a child deprived ofhis or her biological family. [Paras 12, 13 and 14][797-F-G; 798-C-D]FGitha Hariharan and Ors. v. Reserve Bank of Indiaand Ors., MANU/SC/0117/1999 : [1999] 1 SCR 669 –relied on.

Encyclopedia of Religion and Ethics – referred to.G2.1. While this Court is not apathetic to the predicament ofthe Respondent grandparents, it is a fact that absolutely no reliefwas ever sought by them for the change of surname of the childto that of first husband/ son of respondents. It is settled law thatrelief not found on pleadings should not be granted. If a Court H

considers or grants a relief for which no prayer or pleading wasmade depriving the respondent of an opportunity to oppose orresist such relief, it would lead to miscarriage of justice. [Para15][798-E-F]

2.2. In this case while directing for change of surname ofthe child, the High Court has traversed beyond pleadings andsuch directions are liable to be set aside on this ground.[Para 18][799-C]

3. The mother being the only natural guardian of the childhas the right to decide the surname of the child. She also has theright to give the child in adoption. The Court may have the powerto intervene but only when a prayer specific to that effect is madeand such prayer must be centered on the premise that child’sinterest is the primary consideration and it outweighs all otherconsiderations. [Para 19][799-D-E]

Messrs. Trojan & Co. Ltd. v. Rm.N.N. Nagappa Chettiar,AIR 1953 SC 235 : [1953] SCR 789 and BharatAmratlal Kothari & Anr. v. Dosukhan Samadkhan Sindhi& Ors., AIR 2010 SC 475 : [2009] 15 SCR 662 – reliedon.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6325-6326 of 2015.

From the Judgment and Order dated 24.01.2014 of the High Courtof Andhra Pradesh at Hyderabad in F.C.A. No.236 of 2011 and F.C.A.No.403 of 2012.

Ravi Bossi, Surender Kumar Gupta, Advs. for the Appellant.

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794SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byKRISHNA MURARI, J.

1. These appeals impugn common final judgment dated 24.01.2014in F.C.A. no. 236 of 2011 filed by the respondents and F.C.A. No. 403of 2012 filed by the appellant; passed by the High Court of AndhraBPradesh. In these appeals, the subject matter of dispute between themother and the parents of the deceased father of the child (grandparents)is the surname given to the child. While the issue of visitation rights wasalso advanced in the pleadings, no arguments were made in Courtregarding same and therefore we have not considered the judgment ofCthe High Court on the said aspect.

Brief facts

2. The Appellant married Konda Balaji, son of respondents, on18.12.2003. A Child was born out of the wedlock on 27.03.2006. However,Dthe husband of the Appellant expired on 14.06.2006. At the time thechild was merely 2½ months old. Thereafter, the Appellant married SriAkella 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 yearsand 4 months.E

3. On 9[th] April, 2008, the respondents had filed a petition underSection 10 of the Guardian and Wards Act, 1890 for appointing them asGuardians of Master Ahlad Achintha, son of the appellant. At the timeof filing the petition the child was aged about 2 years old and theFrespondents made the following prayer:

a) To appoint the petitioners as Guardians to the Minor Childnamely Ahlad Achintha, aged 2 years for their person.

b) To grant visiting rights of the minor child pending disposal ofO.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 fitand proper in the circumstances of the case and in the interestof justice.

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4. The Trial Court vide Order dated 20.09.2011 dismissed thePetition filed by the respondents and was of the opinion that it would notbe appropriate to separate the child from the love and affection of hismother. The Trial Court also took into account the old age of theRespondent grandparents. It however, granted visitation rights to therespondents and directed the Appellant and her husband to bring theirchild to the house of her parents at Hyderabad once in three months inthe end preferably on Dussehra and Deepavali festivals and Sankranthifestival days and during school vacations. The respondents were permittedto see their grand son during such period for 2 days from sunrise tosunset.

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5. The Order of the Trial Court was challenged in appeals beforethe High Court by both the parties. During the course of arguments, itwas brought to the notice of the High Court that the surname of the childwas changed from Konda to Akella. The High Court disposing of thepetition vide common judgment dated 24.01.2014 passed the followingdirections:

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a) The Appellant i.e., Akella Lalitha would be the natural guardianof the child, but shall be under obligation to bring the child tothe residence of the respondents in such a way that the childwill be with them for a period of 2 days during winter vacation.The respondents shall also be entitled to see the child in theresidence of the Appellant, with prior intimation; E

b) The Appellant shall complete the formalities for restoration ofthe surname and father’s surname of the child within a periodof three months from the date of receipt of a copy of thisorder; and F

c) So far as the name of the father of the child is concerned, it isdirected that wherever the records permit, the name of thenatural father shall be shown and if it is otherwise impermissible,the name of Ravi Narasimha Sarma, shall be mentioned asGstep-father.

This common judgment of the High Court is challenged by theappellant in the present appeals. The primary issues that requireadjudication are :- H

AI. Whether the mother, who is the only natural/legal guardian ofthe child after the death of the biological father can decide thesurname of the child. Can she give him the surname of hersecond husband whom she remarries after the death of herfirst husband and can she give the child for adoption to herhusband?B

II. Whether the High Court has the power to direct the Appellantto change the surname of the child specially when such reliefwas never sought by the respondents in their petition beforethe trial Court?

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Issue I

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6. Addressing the first issue, both the lower Courts have concurredthat the mother is the natural guardian of the child after the demise ofthe father.

7. Section 6 of the Hindu Minority and Guardianship Act, 1956provides as under :- “The natural guardians of a Hindu, minor, in respect of theminor’s person as well as in respect of the minor’s propertyE(excluding his or her undivided interest in joint familyproperty), are – (a) in the case of a boy or an unmarriedgirl—the father, and after him, the mother: provided that thecustody of a minor who has not completed the age of fiveyears shall ordinarily be with the mother; (b) in the case ofFan illegitimate boy or an illegitimate unmarried girl – themother, and after her, the father; (c) in the case of a marriedgirl – 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 fatheris dead or has completely and finally renounced the world orhas ceased to be a Hindu or has been declared by a Court ofcompetent jurisdiction to be of unsound mind.’’

9. In the case of Githa Hariharan and Ors. vs. Reserve Bankof India and Ors.[1] this Court elevated the mother to an equal positionas the father, bolstering her right as a natural guardian of the minor childunder Section 6 of the Hindu Minority and Guardianship Act, 1956.

10. After the demise of her first husband, being the only naturalguardian of the child we fail to see how the mother can be lawfullyrestrained from including the child in her new family and deciding thesurname of the child. A surname refers to the name a person shareswith other members of that person’s family, distinguished from thatperson’s given name or names; a family name. Surname is not onlyindicative of lineage and should not be understood just in context ofhistory, culture and lineage but more importantly the role it plays is withregard to the social reality along with a sense of being for children intheir particular environment. Homogeneity of surname emerges as amode to create, sustain and display ‘family’.

11. The direction of the High Court to include the name of theAppellant’s husband as step-father in documents is almost cruel andmindless of how it would impact the mental health and self-esteem ofthe child. A name is important as a child derives his identity from it anda difference in name from his family would act as a constant reminderof the factum of adoption and expose the child to unnecessary questionshindering a smooth, natural relationship between him and his parents.We, therefore, see nothing unusual in Appellant mother, upon remarriagehaving given the child the surname of her husband or even giving thechild in adoption to her husband.

12. While an adoption deed is not necessary to effect adoptionand the same can be done even through established customs, in thepresent case the Appellant submits that on 12[th] July, 2019, during thependency of the present petition, the husband of the Appellant/step fatherof the child adopted the child by way of Registered adoption deed.Section 12 of the Hindu Adoption & Maintenance Act, 1956 providesthat “An adopted child shall be deemed to be the child of his or heradoptive father or mother for all purposes with effect from the dateof the adoption and from such date all the ties of the child in the A

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Afamily of his or her birth shall be deemed to be severed and replacedby 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 byBbirth. The child loses all rights and is deprived of all duties concerning hisnatural parents and kinsmen. In the new family, the child is like thenatural-born child with all the rights and liabilities of a native-bornmember.”Therefore, when such child takes on to be a kosher memberof the adoptive family it is only logical that he takes the surname of theCadoptive family and it is thus befuddling to see judicial intervention insuch a matter.

14. While the main object of adoption in the past has been tosecure the performance of one’s funeral rights and to preserve thecontinuance of one’s lineage, in recent times, the modern adoption theoryDaims to restore family life to a child deprived of his or her biologicalfamily. Therefore, in light of the above observations, the first issue issettled in favour of the appellant.

Issue II

15. Coming to address the second issue, while this Court is notEapathetic to the predicament of the Respondent grandparents, it is a factthat absolutely no relief was ever sought by them for the change ofsurname of the child to that of first husband/ son of respondents. It issettled law that relief not found on pleadings should not be granted. If aCourt considers or grants a relief for which no prayer or pleading wasFmade depriving the respondent of an opportunity to oppose or resistsuch relief, it would lead to miscarriage of justice.

16. In the case of Messrs. Trojan & Co. Ltd. Vs. Rm.N.N.Nagappa Chettiar[2], this Court considered the issue as to whether reliefnot asked for by a party could be granted and that too without havingGproper pleadings. The Court held as under:- “It is well settled that the decision of a case cannot be basedon grounds outside the pleadings of the parties and it is the H2 AIR 1953 SC 235

case pleaded that has to be found. Without an amendment ofthe plaint, the Court was not entitled to grant the relief notasked for and no prayer was ever made to amend the plaintso as to incorporate in it an alternative case.”

17. In the case of Bharat Amratlal Kothari & Anr. Vs. DosukhanSamadkhan Sindhi & Ors.[3] held:

“Though the Court has very wide discretion in granting relief,the Court, however, cannot, ignoring and keeping aside thenorms and principles governing grant of relief, grant a reliefnot even prayed for by the petitioner.”

18. In this case while directing for change of surname of thechild, the High Court has traversed beyond pleadings and such directionsare liable to be set aside on this ground.

19. Before parting with this subject, to obviate any uncertainty itis reiterated that the mother being the only natural guardian of the childhas the right to decide the surname of the child. She also has the right togive the child in adoption. The Court may have the power to intervenebut only when a prayer specific to that effect is made and such prayermust be centered on the premise that child’s interest is the primaryconsideration and it outweighs all other considerations. With the aboveobservations the directions of the High Court so far as the surname ofthe child is concerned are set aside.

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

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 theseappeals.

Bibhuti Bhushan Bose

Appeals partly allowed.

3 AIR 2010 SC 475

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