Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

CIVIL APPEAL NOS. 6325-6326 OF 2015
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:
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
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:
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
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
7. Section 6 of the Hindu Adoption and Maintenance 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
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.
 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 Adoption 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
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 12th 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
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
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
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
, 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
17. In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan
Samadkhan Sindhi & Ors.
"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
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.
28TH JULY, 2022


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