Mother Being The Only Natural Guardian Has Right To Decide Surname Of Child – SC Affirms
A Supreme Court Bench of Justice Dinesh Maheshwari and Justice Krishna Murari heard an appeal against a judgment passed by the Andhra Pradesh High Court. After hearing the matter – which was of dispute regarding the surname given to a child after the death of his father – the Court held 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 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 observations the directions of the High Court so far as the surname of the child is concerned are set aside.
Counsel Surender Kumar Gupta appeared for the Appellant before the Apex Court.
In this case, the Appellant married the son of the Respondents and had a child. However, 2.5 months later, the husband of the Appellant passed away. Thereafter, the Appellant married another person. Presently, the child born out of the first marriage is still a minor.
The Respondents filed a Petition under Section 10 of the Guardian and Wards Act, 1890 for appointing them as Guardians of the child.
The Trial Court dismissed the Petition and was of the opinion that it would not be appropriate to separate the child from the love and affection of his mother. The Court also took into account the old age of the Respondents. However, the Respondents were granted visitation rights.
This 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 had been changed to that of the Appellant's second husband.
The High Court ordered that the Appellant must restore the surname and father's surname of the child within three months, while holding that the Appellant is the natural guardian of the child and granting visitation rights to the Respondents.
This judgment of the High Court was challenged by the Appellant before the Supreme Court. The primary issues that required adjudication were :-
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 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?
Addressing the first issue, the Court relied on the provisions of Section 6 and Section 9 of the Hindu Adoption and Maintenance Act, 1956, and the judgment in the case of Githa Hariharan and Ors. vs. Reserve Bank of India and Ors. The Court then opined that it failed to see how the mother can be lawfully restrained from including the child in her new family and deciding the surname of the child after the demise of her first husband. In that context, it was opined that "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."
It was also brought to the attention of the Court that the husband of the Appellant had adopted the child by way of a Registered Adoption Deed.
The Court opined that 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.
Addressing the second issue, the Court opined that it was a fact that absolutely no relief was ever sought by them for the change of surname of the child to that of their deceased son. To that end, the Court observed that "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 made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice."
Relying on judgments like Messrs. Trojan & Co. Ltd. Vs. Rm.N.N. Nagappa Chettia and Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors., the Court held that the High Court had traversed beyond pleadings and therefore, such directions were liable to be set aside.
To that end, the Apex Court ordered that the directions of the High Court regarding the surname of the child must be set aside, and the appeals were allowed in part. The parties were ordered to bear their own costs and expenses incurred in the appeals.