The object of adoption is to restore family life to a child deprived of his her biological family, mother being the only natural guardian after the death of father can decide to change the surname of her child.
The mother being the only natural guardian of the child, after the demise of her husband, has the right to decide the surname of the child. She also has the right to give the child in adoption - Supreme Court
The Bench of the Supreme Court comprising of Justices Dinesh Maheshwari and Krishna Murari opined in a case that mother being the only natural guardian of the child, after the demise of her husband, has the right to decide the surname of the child. She also has the right to give the child in adoption.
The case in brief is that the appellant with whom she was
married expired leaving behind a son aged 2 ½ months and thereafter she remarried after
about a year. The dispute in the present
case is regarding the child who is now 16 years, surname was changed from
biological father to the adoptive father. It is a dispute between the mother
and grandparents of the child.
The grandparents of the
child filed a petition before the Trial Court under Section 10 of the Guardian and Wards
Acts Act, 1890 for appointing them as guardians but the same was dismissed on
the ground that it is inappropriate to separate the child from the love ad
affection of his mother. The Trial Court taking into account their old age granted
visitation rights and directed the appellant and her husband to bring child to
grandparents’ house once in three months.
The
grandparents/respondent challenged the order of the Trial Court before the High
Court, wherein the High Court was additional argument was made that the surname of the child has been changed. The
High Court directed the appellant to complete the formalities for restoration
of surname. It was also directed that the name of the natural father shall be
shown in all records and the name of the adoptive father be mentioned as step
father.
Therefore the impugned
order of the High Court became the subject matter of the appeal before the Hon’ble
Supreme Court with the following primary issues:
1. 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?
2. 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?
The Hon’ble Court
quoted Sections 6 and 9(3) of the Hindu Adoption and Maintenance Act, 1956 and
also reiterated the views decided in the case of Githa Hariharan and Ors. Vs.
Reserve Bank of India and Ors. (1999) where the Supreme Court elevted
the mother to an equal position as the father, bolstering her right as a
natural guradoan of the child under Section 6 of the Hindu Minority and
Adoption Act, 1956.
“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 environment. Homogeneity of surname emerges as a mode to create, sustain and display ‘family’.”
The Supreme Court also opined regarding the direction of the High Court to
include the name of appellant’s husband as step father, a cruel and mindless of
how it would impact the mental health and self-esteem of the child. Therefore nothing
is 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 Court said.
“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.”
Since the object
of adoption is to restore family life to a child deprived of his her biological
family, mother being the only natural
guardian after the death of father can decide to change the surname of her
child.
As regard to the 2nd issue for change of surname to its original one, when such relief was never sought in pleadings before by the grandparents, relief cannot 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, the Court emphasized.
The High Court has traversed beyond pleadings
by directing for change of name and as such the direction is set aside by the
Hon’ble Supreme Court.
Mrs. Akella Lalitha Versus Sri
Konda Hanumantha Rao & Anr. (Civil
Appeal Nos. 6325-6326 Of 2015)
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