INTRODUCTION
A surname also referred to as a family name, is a common identifier shared among members of a family. It serves not only as a marker of one’s cultural, genealogical, or historical inheritance but also as a means of nurturing a sentiment of affiliation and solidarity in society, chiefly among children. Nonetheless, the vestiges of a patriarchal social construct, that linger in history, have engendered an imbalanced distribution of power based on gender, as evident from the convention of perpetuating the father’s surname in many cultures. Despite this, it is imperative to consider the rights and perspectives of mothers in this dynamic and to reflect these considerations in legal frameworks.
In the Indian context, the judicial pronouncement in the case of Akella Lalitha v. Sri Konda Hanumantha Rao is a significant stride towards achieving gender parity and serves as a potent reminder of the judiciary’s catalytic role in catalyzing social transformation. However, a critical evaluation of the Akella verdict’s impact on Indian society is imperative, highlighting the current inadequacies impeding its efficacious implementation. This underscores the urgency for legislative reform aligning with the verdict’s true essence, notably in relation to the Hindu Minority and Guardianship Act, of 1956. This statute governs the guardianship of Hindu children but lacks gender neutrality, perpetuating discriminatory practices against women. A compelling argument exists to revise and reconstitute it, enhancing its inclusivity and impartiality.
Furthermore, it is essential to explore the broader ramifications of this judgment on various aspects of Indian society, including but not limited to, family law, succession law, and property rights. It also highlights the need for more awareness and education on this issue among the general public, as well as further judicial and legislative efforts to advance gender equality in this regard. Only by taking a comprehensive and holistic approach can we truly achieve true gender equality in regard to surnames and family names in India.
FACTS OF THE CASE
The Appellant married Konda Balaji, son of respondents, and a child was born out of wedlock. The husband of the appellant passed away 2.5 years after the child’s birth. The appellant married, a Wing Commander in IAF, Sri Akella Ravi Narasimha Sarma a year after the expiration of her husband.
In April 2008, the Grandparents of the child filed a petition under §10 of the Guardian and Wards Act, 1890 for appointing them as Guardians in the Trial Court. Consequently, the Court dismissed the petition as it opined that the separation of the child from the love and affection of his mother would not be viable and appropriate. However, the court granted
visitation rights to the Grandparents.
The Order of the Trial Court was further challenged before the High Court by both parties. The High Court was notified that the surname of the child was changed from Konda to Akella. After the course of arguments, the High Court passed a judgement affirming Akella Lalitha to be the natural guardian of the child but placed the obligation to bring the child for
visitation at the Grandparents’ house.
The High Court also directed the restoration of surname to the natural father’s surname and wherever required the name of ‘father’ is required, the natural father’s name is to be used and the name of Ravi Narasimha Sarma to be mentioned as Step-Father.
The judgement was further challenged in the Supreme Court by Akella Lalitha.
The matters brought before the Supreme Court for consideration in this case pertained to the issue of surname alteration. The Court was tasked with determining whether, as the sole natural and legal guardian of the child following the passing of the biological father, the mother has the autonomy to choose the child’s surname, and if so, whether it is permissible for her to give the child up for adoption to her second husband post-remarriage. Additionally, the Court was to consider if the High Court has the authority to impose a change in the child’s surname without a prior request for such relief having been made in the initial petition presented before the Trial Court.
JUDGEMENT
In ruling on the first point of contention, the Supreme Court concurred with the prior decisions of the lower courts that the mother is the natural guardian following the passing of the biological father. The Court cited §6, Hindu Minority And Guardianship Act, 1956 which confers this status on the mother, as shown:
“The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are – (a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father; (c) in the case of a married girl – the husband”.
Additionally, the Court referenced §9(3) of the Hindu Minority And Guardianship Act, 1956 which recognizes the mother’s authority to give the child up for adoption if the father is deceased. The Court emphasized that as long as the qualifications of the potential adopter are met, the mother cannot be impeded from making this decision at her discretion.
The Court also cited the case of Githa Hariharan and Ors. vs. Reserve Bank of India and Ors to demonstrate the elevation of the mother to an equal status as the father, thereby reinforcing her rights as a natural guardian of the minor child under §6 of the Hindu Minority And Guardianship Act, 1956.
Additionally, it was opined that the mention of the current spouse as the child’s stepfather in official documents does not consider the consequences of the same on the child’s mental health and self-esteem. Thus, the court declared that as the only natural guardian of the child, the mother legally has the right to change her child’s surname or put them up for adoption.”
Lastly, the Court noted that the respondents had never sought relief or requested for the change of the child’s surname from that of the second husband. It is a well-established principle in law that relief not sought in pleadings should not be granted by the court.
SHIFTING PARADIGMS: THE POSITIVE IMPLICATIONS OF THE VERDICT
The Supreme Court,s ruling, in this case, exhibits a marked level of enlightenment and progressive ideals. The Court demonstrated a nuanced comprehension of the significance and societal impact of surnames. Rather than viewing surnames simply as markers of lineage, the Court acknowledged their function as symbols of belonging and community within society, particularly for children. The homogeneity of surnames serves as a means of establishing, maintaining, and reinforcing the concept of “family”. The Court also exhibited empathy towards the child regarding the directive of the High Court to list the Appellant’s second husband as the “Step-Father” in official documents. Such a designation risks causing harm to the child’s mental health and potentially undermines their natural relationship with their adoptive father, by consistently reminding them of the fact of the adoption and hindering the development of familial bonds. This judgment is reflective of a child-centered approach, characterized by empathy and mindful consideration of the impact of the ruling, rather than strict adherence to legal positivism.
Furthermore, the Supreme Court’s decision to uphold the mother’s right to change the child’s surname further reinforces the idea that a surname is not just a mere label of lineage, but also has a significant impact on the individual’s sense of identity, and how they are perceived in the society. It is essential that this decision considers the right of the child and the effect it has on their well-being,and not just the legal technicalities.
The court’s emphasis on the child’s best interest and well-being, rather than adhering to traditional patriarchal norms, is a step towards a more equitable and inclusive society. It recognizes the fact that family structures and parenting roles have evolved over time and it is necessary for laws to adapt to reflect the current realities.
The Supreme Court’s ruling, in this case, sends a clear message that the rights and interests of the child and mother must be given priority in any legal decision affecting them and that a holistic approach that takes into account the emotional and psychological well-being of the child and the mother is essential.
BEYOND THE VERDICT: LIMITATIONS AND CHALLENGES IN REALIZING WOMEN’S RIGHTS TO SURNAME EQUALITY IN INDIA
However, there exists a gender bias in the laws of the land and while this judgement is a step in the right direction, a closer examination is essential to unearth the gendered notions and lacunae present in the proper execution of the ideal of gender equality.
Upon conducting a thorough examination of §6 of the Hindu Minority And Guardianship Act, 1956 and the judgement in Githa Hariharan and Ors. vs. Reserve Bank of India and Ors , it becomes apparent that both legal sources espouse a notion of conditional gender equality. As per the language of §6, the father is deemed the primary natural guardian of a legitimate, unmarried child, with the mother occupying the secondary position.
The Supreme Court of India attempted to alleviate the gender-based imbalances entrenched in the Hindu Minority and Guardianship Act, 1956 through astute interpretation, as evidenced in Githa Hariharan v. Reserve Bank of India case. However, the court’s endeavours fell short of accomplishing their objective, as the verdict stipulated that the term “after” should be interpreted as ‘in the absence of’ , granting the mother natural guardianship only if the father was absent from the child’s care. This ruling remained prejudiced, as the mother remained a secondary guardian in cases where the father was present, irrespective of her personal interests in the child’s well-being. The hierarchy was solely based on the mother’s gender, a manifestly discriminatory feature. Regrettably, the judgment did not address the discriminatory nature of the provision, which remains a challenge to be resolved.
Gender-based discrimination in laws related to marital status perpetuates the systemic oppression of women and girls across diverse domains of family relations, extending from premarital to marital and post-marital phases. Statutes that endow the father with preferential custody or guardianship rights over children, at the expense of the mother, operate on the erroneous presumption that men are innately superior to women, disempowering mothers in deciding on issues related to their children’s upbringing. Moreover, in certain instances, the minor girl’s husband may be considered her legal guardian, notwithstanding the illegality of their marriage, further exacerbating the subordinate status of women and girls in family affairs.
The understanding of §6 undermines the Court’s claim in the recent ruling that the judgement in Githa elevates both parents to an equal footing as the mother is still subject to the authority of the father in the hierarchy of guardianship. It further reinforces the entrenched patriarchal system within society. Hence, as stated in Githa, the mother’s right to choose the child’s surname is only exercised when the father is either deceased or has relinquished his control over the child’s affairs.
The Law Commission of India, in its 257th Report on ‘Reforms in Guardianship and Custody Laws in India,’ put forth recommendations aimed at bringing §6 in alignment with the fundamental principle of equality enshrined in Article 14 of the Constitution. By affirming the proposals of its earlier 133rd Report , which advocated for the elimination of the concept of one parent’s superiority over the other, the Commission suggested that the Doctrine of Welfare of Children should be upheld and given the utmost importance in all cases. Thus, both the mother and father should be simultaneously recognized as natural guardians of a minor, acknowledging their equal rights and responsibilities in the upbringing of their child.
Henceforth, it is imperative to acknowledge that the pronouncement of a verdict must be considered as a means and mechanism to foster the institutionalization of gender parity, not solely within the confines of society but also across the State machinery and the Judiciary. However, the degree of success that can be attributed to this decision in fulfilling its intended purpose remains dubious, primarily due to the inadequacies in executing it effectively, stemming from the legislative framework and societal structures that continue to impede progress toward gender equality.
It is essential to recognize that the implications of this verdict extend beyond the specific case in question and can potentially impact the broader social and legal landscape. Therefore, the need of the hour is to address the underlying structural and institutional barriers that obstruct the realization of gender parity, and adopt a comprehensive approach that encompasses legal, social, and cultural aspects. Only then can we aspire to establish a truly egalitarian society where every individual is guaranteed equal rights and opportunities, irrespective of theirgend
CONCLUSION
The law is ultimately the means through which we can achieve fairness and equity, even in the personal lives of individuals and families. The judgments of Supreme Court in the case of Akella Lalitha v. Sri Konda Hanumantha Rao give much-needed relief to all the women who remarry and face stigmatization from the society and the vital of a surname in a person’s life. The apex court’s intent and commitment to the ideals of gender equality are appreciable however it is crucial to analyse the level of execution of those ideals in society, equally important is to understand the methodology of the lower courts and shun away a patriarchal view of the proceedings.
To translate the ideal of equality into tangible outcomes, fundamental changes at the grassroots level are imperative. However, employing a matronymic surname often elicits resistance and prejudice due to societal biases towards illegitimacy. This is particularly notable since, according to §6(b) of the Hindu Minority and Guardianship Act, a mother is only granted primary natural guardianship for illegitimate offspring. Furthermore, the utilization of a non-patrilineal surname may be perceived as a curtailment of male authority, leading to opposition against a mother’s prerogative to elect her child’s surname. Consequently, the mother’s unrestricted exercise of her legal right to choose her child’s surname is obstructed by societal censure.
Therefore, the need of the hour is an attempt to reform the provisions of the Hindu Adoption and Maintenance Act to make it gender neutral with the guiding intent of gender equality. The Judiciary must restrain from a strict positivistic understanding of law where the language of the law restrains and creates unintended implications.
The judgement in Akella Lalitha v. Sri Konda Hanumantha Rao is a step in the right direction, the execution and societal implications of this judgement can only be achieved through mutual commitment between the Judiciary, Legislature and most importantly Society at large.
Arnav Mathur
1st year, NALSAR University of Law
Excellent write up Arnav.. Gender equality and natural justice are two key pillars of modern society ..