771 January 14 2023

Supreme Court: Mother who remarries after the death of the biological father can decide the surname of the child and include it in her new family

Case Title: MRS. AKELLA LALITHA V/s SRI KONDA HANUMANTHA RAO & ANR
CIVIL APPEAL NOS. 6325-6326 OF 2015; 28TH JULY, 2022
Panel: DINESH MAHESHWARI J. & KRISHNA MURARI J.

Fact of the case: 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.Presently, the child Master Ahlad Achintya is still a minor aged 16 years and 4 months.  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. 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.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.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 orders that (a) Akella Lalitha would be the natural guardian of the child, (b) The Appellant shall complete the formalities for restoration of the surname and father’s surname of the child within a period of three months from the date of receipt of a copy of this order. This common judgment of the High Court is challenged by the appellant in the present appeals before Hon'ble Supreme Court.

Issue : In this case subject matter of dispute between the mother and the parents of the deceased father of the child (grandparents) is the surname given to the child. Andhra Pradesh High Court direction to a mother who remarried another person after death of her first husband to restore surname of a child and further direct that wherever the records permit, the name of the natural father shall be shown and if it is otherwise impermissible, the name of the present husband shall be mentioned as step-father.

[What is Surname? 
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........Additional Information(Legalfree.in)]
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Supreme Court Observation: 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. 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.

Decision: 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.. With the above observations the directions of the High Court so far as the surname of the child is concerned are set aside.As a consequence, the appeals stand allowed in part.

Supreme Court Judgment: Click here to download

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Note : This article is written by Adv. Alok Kumar practicing advocate in Delhi High Court, for any suggestions you may contact here advocatealok21@gmail.com and 9953184869

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Adv. ALOK KUMAR
Advocate Serving Delhi NCR
Delhi High Court & District Courts
LL.B.▪︎Faculty of Law▪︎Delhi University


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