Case: MRS. AKELLA LALITHA Vs. SRI KONDA HANUMANTHA RAO &amp; ANR

2. The Appellant married Konda Balaji, son of respondents, on 18.12.2003. A Child was born out of the wedlock on 27.03.2006. However, the husband of the Appellant expired on 14.06.2006. At the time the child was merely 2 ½ months old. Thereafter, the Appellant married Sri Akella Ravi Narasimha Sarma, a Wing Commander in IAF on 26.08.2007. Out of this wedlock, the couple had a child and they live together. Presently, the child Master Ahlad Achintya is still a minor aged 16 years and 4 months.3. On 9th April, 2008, the respondents had filed a petition under Section 10 of the Guardian and Wards Act, 1890 for appointing them as Guardians of Master Ahlad Achintha, son of the appellant. At the time of filing the petition the child was aged about 2 years old and the respondents made the following prayer:a) To appoint the petitioners as Guardians to the Minor Child namely Ahlad Achintha, aged 2 years for their person.b) To grant visiting rights of the minor child pending disposal of O.P.c) For costs of the petitioner, andd) For such other relief or reliefs as this Honble Court deems fit and proper in the circumstances of the case and in the interest of justice.4. The Trial Court vide Order dated 20.09.2011 dismissed the Petition filed by the respondents and was of the opinion that it would not be appropriate to separate the child from the love and affection of his mother. The Trial Court also took into account the old age of the Respondent grandparents. It however, granted visitation rights to the respondents and directed the Appellant and her husband to bring their child to the house of her parents at Hyderabad once in three months in the end preferably on Dussehra and Deepavali festivals and Sankranthi festival days and during school vacations. The respondents were permitted to see their grand son during such period for 2 days from sunrise to sunset.5. The 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 was changed from Konda to Akella. The High Court disposing of the petition vide common judgment dated 24.01.2014 passed the following directions:a) The Appellant i.e., Akella Lalitha would be the natural guardian of the child, but shall be under obligation to bring the child to the residence of the respondents in such a way that the child will be with them for a period of 2 days during winter vacation. The respondents shall also be entitled to see the child in the residence of the Appellant, with prior intimation;b) The Appellant shall complete the formalities for restoration of the surname and fathers surname of the child within a period of three months from the date of receipt of a copy of this order; andc) So far as the name of the father of the child is concerned, it is directed that wherever the records permit, the name of the natural father shall be shown and if it is otherwise impermissible, the name of Ravi Narasimha Sarma, shall be mentioned as step-father.

Reasoning:
9. In the case of Githa Hariharan and Ors. vs. Reserve Bank of India and Ors. MANU/SC/0117/1999 this Court elevated the mother to an equal position as the father, bolstering her right as a natural guardian of the minor child under Section 6 of the Hindu Minority and Adoption Act, 1956.10. 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 persons family, distinguished from that persons 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.11. The direction of the High Court to include the name of the Appellants 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. 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.14. While the main object of adoption in the past has been to secure the performance of ones funeral rights and to preserve the continuance of ones lineage, in recent times, the modern adoption theory aims to restore family life to a child deprived of his or her biological family. Therefore, in light of the above observations, the first issue is settled in favour of the appellant.15. Coming to address the second issue, 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 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.16. In the case of Messrs. Trojan & Co. Ltd. Vs. Rm.N.N. Nagappa Chettiar AIR 1953 SC 235 , this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:-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.17. In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors. AIR 2010 SC 475  held:Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner.18. 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.