Family Law – Surname of child – Dispute between Appellantmother and respondent-grandparents, (parents of deceased father 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 she give the child for adoption to her husband – Held: Appellantmother 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 deciding the surname of the child – Nothing unusual in Appellantmother, 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.
Family Law – Surname of child – Dispute between Appellantmother and respondent-grandparents (parents of deceased father of the child) with regard to surname given to the child – Appellantmother remarried after death of her first husband – Whether High Court had the power to direct Appellant-mother to change the 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 & ANR.
outweighs all other considerations – While the 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 – In this case while directing for change of surname of the child, the High Court traversed beyond pleadings and such directions are 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 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.
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 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 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 environment. Homogeneity of surname emerges as a mode to create, sustain and display ‘family’. [Para 10][797-B-C]
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 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]
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 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 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; 798C-D] 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.
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 & ANR.
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. [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 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 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]
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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