Supreme Court of India
MRS. AKELLA LALITHAversusSRI KONDA HANUMANTHA RAO & ANR.
- Citation
- 2022 INSC 759
- Decided
- 28 July 2022
- Disposal
- Case Partly allowed
- Bench
- DINESH MAHESHWARI
Holding
The mother, as the sole natural guardian under the Hindu Minority and Guardianship Act, 1956, has the exclusive right to determine the child's surname and to adopt the child, and a court cannot impose a surname change not sought in the pleadings.
Summary
The mother, Akella Lalitha, gave birth to a child with her first husband Konda Balaji, who died shortly after. She later remarried Akella Ravi Narasimha Sarma, and the child's grandparents sought guardianship and visitation, later prompting the High Court to order a restoration of the child's original surname and to record the step‑father's name. The Supreme Court examined whether, under the Hindu Minority and Guardianship Act, 1956, the mother as the sole natural guardian could decide the child's surname and adopt the child to her second husband, and whether the High Court could impose a surname change not pleaded for. Relying on Section 6 of the Hindu Minority and Guardianship Act and Section 9(3) of the Hindu Adoption and Maintenance Act, the Court held that the mother has the exclusive right to determine the surname and to give the child in adoption, and that a court cannot grant relief not sought in the pleadings. Consequently, the High Court’s directions to change the surname were set aside and the appeals were partly allowed, with each party bearing its own costs.
Issues considered
- Whether the mother, as the sole natural/legal guardian after the father's death, can decide the child's surname and adopt the child to her second husband.
- Whether the High Court can direct a change of the child's surname when such relief was not prayed for by the respondents.
Legislation cited
Subjects
family lawsurname of childnatural guardianadoptionHindu Minority and Guardianship Actrelief not prayed forpleadingscourt jurisdiction
Judgment
790 [2022]REPORTS
SUPREME COURT 6 S.C.R. 790 [2022] 6 S.C.R.
A 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 father
C of the child) with regard to surname given to the child – Whether
Appellant-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 remarried after the death of her first husband and can
D she give the child for adoption to her husband – Held: Appellant-
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 – After demise of her first husband, being the
only natural guardian of the child, the appellant-mother cannot be
lawfully restrained from including the child in her new family and
E
deciding the surname of the child – 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 –
Hindu Minority and Guardianship Act,1956 – s.6 – Hindu Adoption
and Maintenance Act, 1956 – s.9(3) and 12.
F
Family Law – Surname of child – Dispute between Appellant-
mother and respondent-grandparents (parents of deceased father
of the child) with regard to surname given to the child – Appellant-
mother remarried after death of her first husband – Whether High
Court had the power to direct Appellant-mother to change the
G surname of the child specially when such relief was never sought
by respondents in their petition before the trial court – Held: 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
H
790
MRS. AKELLA LALITHA v. SRI KONDA HANUMANTHA RAO 791
& ANR.
outweighs all other considerations – While the Court is not apathetic A
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 –
In this case while directing for change of surname of the child, the
High Court traversed beyond pleadings and such directions are B
liable to be set aside on this ground – Hindu Minority and
Guardianship Act, 1956 – s.6 – Hindu Adoption and Maintenance
Act, 1956 – s.9(3).
Family Law – Surname – Relevance of – Discussed.
Family Law – Adoption – Object in the past – Modern C
adoption theory – Held: 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. D
Pleadings – Grants of relief for which no prayer or pleading
was made – If justified – Held: 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 E
miscarriage of justice.
Partly allowing the appeals, the Court
HELD: 1.1. After the demise of her first husband, being
the only natural guardian of the child one fails to see how the F
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
G
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
environment. Homogeneity of surname emerges as a mode to
create, sustain and display ‘family’. [Para 10][797-B-C]
H
792 SUPREME COURT REPORTS [2022] 6 S.C.R.
A 1.2. 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
B 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. Therefore, there is
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. [Para 11][797-D-F]
C
1.3. 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
D husband of the Appellant/ step father of the child adopted the
child by way of Registered adoption deed. When a 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. While
the main object of adoption in the past has been to secure the
E 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. [Paras 12, 13 and 14][797-F-G; 798-
C-D]
F
Githa Hariharan and Ors. v. Reserve Bank of India
and Ors., MANU/SC/0117/1999 : [1999] 1 SCR 669 –
relied on.
Encyclopedia of Religion and Ethics – referred to.
G 2.1. 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
H
MRS. AKELLA LALITHA v. SRI KONDA HANUMANTHA RAO 793
& ANR.
considers or grants a relief for which no prayer or pleading was A
made depriving the respondent of an opportunity to oppose or
resist such relief, it would lead to miscarriage of justice. [Para
15][798-E-F]
2.2. In this case while directing for change of surname of
the child, the High Court has traversed beyond pleadings and B
such directions are liable to be set aside on this ground.
[Para 18][799-C]
3. 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 C
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. [Para 19][799-D-E]
D
Messrs. Trojan & Co. Ltd. v. Rm.N.N. Nagappa Chettiar,
AIR 1953 SC 235 : [1953] SCR 789 and Bharat
Amratlal Kothari & Anr. v. Dosukhan Samadkhan Sindhi
& Ors., AIR 2010 SC 475 : [2009] 15 SCR 662 – relied
on.
E
Case Law Reference
[1999] 1 SCR 669 relied on Para 9
[1953] SCR 789 relied on Para 16
[2009] 15 SCR 662 relied on Para 17
F
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6325-
6326 of 2015.
From the Judgment and Order dated 24.01.2014 of the High Court
of Andhra Pradesh at Hyderabad in F.C.A. No.236 of 2011 and F.C.A.
No.403 of 2012. G
Ravi Bossi, Surender Kumar Gupta, Advs. for the Appellant.
H
794 SUPREME COURT REPORTS [2022] 6 S.C.R.
A The Judgment of the Court was delivered by
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
B
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
C 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,
D the husband of the Appellant expired on 14.06.2006. At the time the
child was merely 2½ 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.
E
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
F 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.
G
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.
H
MRS. AKELLA LALITHA v. SRI KONDA HANUMANTHA RAO 795
& ANR. [KRISHNA MURARI, J.]
4. The Trial Court vide Order dated 20.09.2011 dismissed the A
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 B
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.
C
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 D
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. E
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 F
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 G
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 :-
H
796 SUPREME COURT REPORTS [2022] 6 S.C.R.
A 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
B 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?
C
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.
D
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
E (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
F 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”.
8. Section 9(3) of the Hindu Adoption and Maintenance Act,
1956 provides that,
G
“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.’’
H
MRS. AKELLA LALITHA v. SRI KONDA HANUMANTHA RAO 797
& ANR. [KRISHNA MURARI, J.]
9. In the case of Githa Hariharan and Ors. vs. Reserve Bank A
of India and Ors.1 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 B
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 C
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 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 D
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 E
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 F
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 G
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
1
MANU/SC/0117/1999 H
798 SUPREME COURT REPORTS [2022] 6 S.C.R.
A 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
B 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
C 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
D 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.
Issue II
E 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
F 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 Chettiar2, this Court considered the issue as to whether relief
not asked for by a party could be granted and that too without having
G
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
H 2
AIR 1953 SC 235
MRS. AKELLA LALITHA v. SRI KONDA HANUMANTHA RAO 799
& ANR. [KRISHNA MURARI, J.]
case pleaded that has to be found. Without an amendment of A
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.”
17. In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan
Samadkhan Sindhi & Ors.3 held: B
“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.”
C
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 D
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
E
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.
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 F
appeals.
Bibhuti Bhushan Bose Appeals partly allowed.
G
3
AIR 2010 SC 475 H
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