In CIVIL APPEAL NOS.6325-6326 OF 2015-SC- Mother being only natural guardian of child has right to decide child’s surname; She also has right to give child in adoption: Supreme Court Justices Dinesh Maheshwari & Krishna Murari [28-07-2022]

Read Judgment: MRS. AKELLA LALITHA v. SRI KONDA HANUMANTHA RAO & ANR 

Tulip Kanth

New Delhi, July 29, 2022: Stressing on the fact that 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, the Supreme Court has affirmed the stand of the Appellant-mother, who upon remarriage, gave her child the surname of her second husband.

Failing to see how the mother could be lawfully restrained from including the child in her new family and deciding the surname of the child, the Division Bench of Justice Dinesh Maheshwari and Justice Krishna Murari said, “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.”

The factual background of this case was such that the Appellant married the son of the respondents and a child was born out of the wedlock but Appellant’s husband expired when the child was merely 2 ½ months old. Thereafter, the Appellant-mother married a Wing Commander in IAF. Out of this wedlock, the couple had a child and they lived together. Presently, the child-Master Ahlad Achintya is still a minor aged 16 years and 4 months. The respondents had filed a petition under Section 10 of the Guardian and Wards Act, 1890 for appointing them as Guardians of Master Ahlad when he was aged about 2 years old. 

The Trial Court dismissed the Petition but granted visitation rights to the respondents. The Order of the Trial Court was challenged in appeals before the High Court and during the course of arguments, it was brought to the Court’s notice that the surname of the child was changed from Konda to Akella. The High Court had held that the respondents were entitled to see the child in the residence of the Appellant, with prior intimation. However, the Court ordered that the formalities for restoration of the surname of the child be done. This common judgment of the High Court was challenged by the appellant in the present appeals. 

The Bench was of the view that the direction of the High Court to include the name of the Appellant’s husband as step-father in documents was almost cruel and mindless of how it would impact the mental health and self-esteem of the child. Observing that the modern adoption theory aims to restore family life to a child deprived of his or her biological family, the Bench held, “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 Bench also noted that 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.

Noticing that absolutely no relief was ever sought by the respondents-grandparents for the the change of surname of the child to that of first husband/ son of respondents, the Bench reiterated the settled law that relief not found on pleadings should not be granted. Thus, considering that the High Court had traversed beyond pleadings while directing for change of surname of the child, the Bench set aside such direction and partly allowed the appeal.