Mother Who Remarries After The Death Of The Biological Father Of Her Child Has The Option To Choose His Surname

Case title:
Akella Lalita Vs Sri Konda Hanumantha Rao

Date of Order:
28th July 2022

Bench:
Justice Dinesh Maheshwari and Justice Krishna Murari

Parties:
Appellant: Akella Lalita
Respondent: Sri Konda Hanumantha Rao

SUBJECT

The surname given to the child was the source of contention between the mother and the parents of the late father of the child (grandparents).The Supreme Court ruled that a mother who remarries after the demise of the original father has the right to choose the child's surname and place the child for adoption by the second husband.

IMPORTANT PROVISIONS

Section 10 of the Guardian and Wards Act, 1890- The petition for guardianship must be attested by two witnesses, according to Section 10 of the Guardians and Wards Act of 1890. If the application is not in conformity with the law, the Court has the ability to dismiss it from the start.

Section 12 of the Hindu Adoption & Maintenance Act, 1956- Section 12 of the Act specifies that an adopted child is regarded to be the child of his adoptive parents from the day of his adoption, and all links to his birth family are broken.

OVERVIEW

• In 2003, the appellant wedded Konda Balaji, the son of the respondents. They had a child together, born in 2006 In 2006, a child was born out of. Unfortunately, the Appellant's husband died the same year. The baby was just 2 1⁄2 months old at the time.
• In 2007, the Appellant married Sri Akella Ravi Narasimha Sarma, an IAF Wing Commander. The pair had a kid and live together as a result of their marriage.
• The child from the first marriage is still a minor at the age of 16 years and 4 months at the time of the instant case.
• On April 9, 2008, the respondents petitioned for appointment as Guardians of the son of the appellant, under Section 10 of the Guardian and Wards Act, 1890. They requested to be appointed as Guardians of the Minor son and to have visiting privileges given to the minor child pending the disposition of O.P.
• The Trial Court rejected the respondents' Petition in 2011, stating that it would be improper to separate the boy from his mother's love and devotion. It also considered the Respondent grandparents' older age. It did, however, order the Appellant and her husband to send their kid to the respondents' home at least once every three months.
• Both parties filed appeals before the High Court against the Trial Court's Order. During the course of the trial, the High Court was informed that the child's surname had been changed from Konda to Akella.
• The High Court issued the following order in its decision on the petition:

1. The Appellant would be the boy's natural guardian, but would be obligated to bring the child to the respondents' house for a minimum of two days throughout winter break.
2. The Appellant shall fulfil the requirements for the restoration of the child's father's surname in 3 months of reception of a copy of the ruling; and
3. In regards of the child's father's name, it was instructed that whenever the records allow, the name of the natural father be displayed, and where this is otherwise prohibited, the name of the second spouse be listed as step-father.

• In the current appeals, the appellant challenges the High Court's common judgement.

ISSUES RAISED

1. Whether the mother, as the child's only natural caregiver after the passing of the biological father, has the authority to choose the child's surname.
2. Whether she can give him the surname of her second husband, whom she remarried after her first husband's passing?
3. Whether the High Court has the authority to order the Appellant to alter the surname of the child, especially because the respondents did not seek such relief in their application before the trial Court?

JUDGEMENT ANALYSIS

• Regarding the first issue, the court opined that after the death of her first husband, as the child’s only natural guardian, they failed to see how the mother can be legally barred from integrating the child in her new family and deciding on the child's surname.
• It was stated that a surname is the name that a person shares with other members of their family, as opposed to their given name or names; a family name. Surnames are not simply indicative of lineage and should not be interpreted solely in historical context.
• They further stated that they believed the High Court's order to insert the name of the Appellant's spouse as stepfather in papers is cruel and disregards the child's mental health and self-esteem. The bench found nothing uncommon in the appellant, upon remarriage, giving the kid the surname of her husband or even adopting the child from her spouse.
• To clarify the second issue, the bench stated that it is true that the respondents never sought relief for changing the surname of the boy to that of the respondent’s son. They stated, it is well established that relief not found on the pleadings should not be granted. A miscarriage of justice would occur if a Court considers or awards a remedy for which no request or pleading was submitted, depriving the respondent of the chance to contest or fight such relief. They placed reliance on the case of Messrs. Trojan & Co. Ltd. Vs. Rm.N.N. Nagappa Chettiar [AIR 1953 SC 235] for the same.

CONCLUSION

It was emphasized that the mother, as the child's only natural guardian, has the authority to choose the child's surname. She also has the option of submitting the child for adoption to her second husband. The Court may interfere, but only if an explicit plea to that effect is made, and such prayer must be based on the concept that the child's interest is the major concern and exceeds all other reasons. With the foregoing considerations, the High Court's directives regarding the child's surname were reversed.

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