SC Upholds Right Of Mother To Change Surname Of Her Child

The Supreme Court, on July 28, observed that a mother had the right to change the surname of her child.

Bench of Justices Dinesh Maheshwari and Krishna Murari heard an appeal against judgment passed by the Andhra Pradesh High Court.

In the instant appeal, the appellant (mother) claimed that she had the right to change the surname of her child after her husband’s death as she solemnised her second marriage.

On the other hand, the paternal grandparents of the minor child argued that the surname of the child should not be changed and that they must have visitation rights to that effect.

Facts

Appellant married son of the respondents in the year 2003. A child was born out of the wedlock in 2006. In the very same year, the husband expired when the child was just two and half months old. 

After one year, the appellant solemnised her second marriage and their child was born. The child out of the first marriage attained the age of sixteen years.  

In 2008, the respondents filed a petition under Section 10 of Guardian and Wards Act 1890, for the custody and visitation rights of the minor.

The trial court dismissed the petition in so far as custody of child was concerned as it deemed it not proper to deprive the child from the love and care of her mother. However, the court granted visitation rights to the grandparents. 

The order was challenged by both the parties and the change of the minor’s surname was brought to the notice of the court.

The High Court, vide the impugned order, directed the appellant herein, that the minor’s surname shall be changed to his biological father’s surname and wherever impermissible, her second husband’s surname would be entered as step-father.

This judgment was challenged by the mother of the minor.

Issues

The question before the court was, whether the mother, who is the natural guardian of the child after the death of her husband, could decide the surname of her child? Also, whether she could give him the surname of her second husband whom she remarried after the death of her first husband and could she give the child for adoption to her husband?

The second issue was whether the High Court had 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?

Decision

The Court held that the mother was the natural guardian of the child after the death of his biological father. 

The Court observed that it failed to see how a mother could be restrained from changing her child’s surname after the death of her husband. 

Court stated that, “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’.”

“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. 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 Court observed.

The Court further noted that the mother had given the child in adoption to her second husband by way of a registered adoption deed. As per Section 12 of Hindu Adoption and Maintenance Act 1956, an adoptive child shall be deemed to be the child of his adoptive father and all his ties with his previous family will be severed.

The Court observed 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,” and held that the mother did indeed have the right to change the surname of her child."

On the issue of whether the respondents could be permitted to seek a relief which was not pleaded in before the High Court, the Court held that the law was settled on the issue.

The Court observed, “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.”

Court cited its judgment in Messrs. Trojan & Co. Ltd. Vs. Rm.N.N. Nagappa Chettiar AIR 1953 SC 235 wherein it was held that, “It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.”

The Apex Court held that the High Court could not have granted relief for which no prayer had been made. It further stated that in such matters the child’s interest must be the primary consideration of the Court.