Critiquing The Existing Literature By Analyzing The ‘Surname’ Debate

Kaustubh Kumar


The school of Legal Realism suggests that the statute is not law but a mere source of law and real law is the interpreted law. Upholding this principle, the Hon’ble Apex Court on July 28, 2022 interpreted the Hindu Minority and Guardianship Act, 1956 (hereinafter as ‘HMGA’) side by side with the Hindu Adoption and Maintenance Act, 1956 (hereinafter as ‘HAMA’) in the matter of Akella Lalitha v. Konda Hanumantha Rao (hereafter may be used as “Akella).  

This piece is divided into two parts wherein first part is an attempt to analyze the Akella verdict and showcase how minutely the Hon’ble Apex Court took care of the provisions of HMGA read with HAMA to deliver the same. The second part considers the Italian Constitutional Court’s Judgement, Number 131/2022, which was alleged to be a judgement similar to Akella and attempts to showcase how the two judgements are completely distinct in nature constructively criticizing one already existing piece on the said verdict.


In Akella, the Hon’ble Court lamented upon the existing patriarchy in the Indian society and delivered a landmark judgment, which stated that the mother is a natural guardian of a child thus can decide the ‘surname’ of the child after the demise of child’s biological father. Further, it was stated that she is well within her rights to give the ‘surname’ of her second husband to the child whom she remarries after the death of her first husband. Bolstering this, the Hon’ble Court even stated that the mother can give her child for adoption to her second husband under provisions of the HAMA.

The brief facts of the case are that the Appellant’s first husband passed away when her child was merely two and a half months old. The Appellant then re-married and gave the child up for adoption to her second husband (i.e., step-father). The primary purpose was to provide the child with the second husband’s ‘surname’. The second husband adopted the child becoming their natural/legal guardian and named the child with his ‘surname’. The plight that a fatherless child suffers in our society is well-known, which the Hon’ble Apex Court gives as a moral ground behind this verdict. However, the exploitation of the law was not appreciated by the Hon’ble Andhra Pradesh High Court as a consequence the Appellant was directed to restore the ‘surname’ of the child within a period of three days. This remedy was awarded though it was neither requested nor argued by the second party in the High Court. Consequently, the judgement was challenged before the Hon’ble Apex Court.

The HMGA and HAMA were considered in the present matter. Section 06 of the HMGA answers the question of who would be the natural guardian of a Hindu minor. The relevant part of the Akella judgement in this section mentions the biological father would be the natural guardian of a boy and an unmarried girl. However, in the absence of a biological father, the biological mother would be the natural guardian. In cases where the boy and unmarried girl are below five years of age, the natural guardian will be the biological mother. It also bars the person to be a natural guardian if he/she has converted and ceased to be a Hindu or has renounced the world by becoming an ascetic or hermit.

Further, Section 09 of the HAMA details the competency of a person capable of giving a child for adoption. The only relevant part of the Section to the Akella judgement is provided under Sub-section 3 wherein it states that the mother can give up the child for adoption if the father of the child is dead or has become a hermit or an ascetic or is declared to be of unsound mind or has ceased to be a Hindu.

Through application of law to the facts it is crystal clear that the mother is well within her rights in the present matter. However, the Apex Court considered the landmark case of Githa Hariharan v. Reserve Bank of India wherein the primary contention was that the presence of the word “after” under Section 06 of the HMGA violates the fundamentals of equality (i.e., both the mother and father are equally important to a child, thereby shall enjoy equal legal rights upon him). The court accorded the biological mother equal status to that of a biological father and interpreted the word “after” in consonance with the intention of the Legislature and the Constitutional mandate that “after” denotes the temporal or permanent absence of a father and does not intend that only after the death of the father, the mother would become a natural guardian.

Thereby, the Hon’ble Court accorded the biological mother the right to decide the ‘surname’ of the child in the present case. This can be justified with the fact that the biological mother is a natural guardian that is equal to a biological father, thereby she can also decide what would be the surname of the child. The question still remains unanswered about which decision will prevail, i.e., whose ‘surname’ will be accorded to the child –  the biological mother or the biological father. It has to be seen if this question has been addressed by the Hon’ble Courts and how they will decide as to it not  likely being answered by Section 6 of the HMGA.


After making the readers understand the verdict, this blog would analyze an existing piece published by the Law School Policy Review & Kautilya Society titled as Analysis of the Implications of Akella Lalitha v. Konda Hanumantha Rao on Indian Society (hereinafter as “article”). Though the article has attempted to make the readers understand the verdict, it falls short in its analysis and completely misunderstands the Akella.

While analyzing, the article completely fails to realize that for children below five years of age, the natural guardian is the mother as per Section 6 of the HMGA. Thus, during that period if she makes up her mind that the ‘surname’ of the child would be that of her parent’s family and registers it in the legal documents of the child. Then, herein, the father cannot assert any rights as the legal guardian as the HMGA bars him as a natural guardian before the child completes five years age. Thereby, it cannot be concluded that the mother cannot decide the ‘surname’ of the child and even if they could then only in cases where the father is absent as the issue is still debatable and needs further clarifications by the Hon’ble Courts.

The Judgement No. 131/2022 of the Italian Constitutional Court (hereinafter as “ItCC judgement”) was analyzed by the article and hailed for its progressive nature while comparing it with the Akella. However, the fundamentals including the facts are completely different of the ItCC judgement from Akella. The ItCC judgement was based on the facts that whether the parents by mutual agreement provide the child with a maternal surname. To this the Court answered that both the parents with mutual agreements may provide the child with any surname, i.e., of their paternal side or maternal side is upon their discretion. Moreover, they can even provide the child with both surnames in whatever order they agree together.

Thus, in Akella, the question was not regarding the child’s surname decided by both the parents together but the mother’s right to decide the child’s surname in absence of the father. The answer would not be contrary to the ItCC judgement, if with similar facts, the question was raised to the Hon’ble Apex Court as when both the parents are at consensus, there would be neither any dispute nor further questions. Further, the article criticizes the Apex Court for not acknowledging the presence of gender inequality under Section 6 of the HMGA. However, the statement is completely irrelevant to the Akella as the remedies sought and issues raised by the parties are nowhere related to the HMGA’s constitutionality or the presence of inequality in the same. Thereby, stating that the HMGA is discriminatory to women would be similar to the Andhra High Court judgement where no issue regarding the ‘surname’ was raised by the parties but the said Court went on to deliver the verdict on the matter, which was even reprimanded by the Hon’ble Apex Court in Akella.


The society is of evolutionary nature, this was championed by ‘Legal Realism’ and is also a main cause behind the birth of the Living Tree Doctrine. To substantiate the same, judgments such as National Legal Services Authority v. Union of India, et al. overabundantly present in the Indian Legal System. With a similar view, to ascertain the fundamentals of equality, the Hon’ble Apex Court came up with the Akella. However, it is iterated time and again, that on the ground it is difficult to see the light of the day, the primary reason being the verdicts are passed but the implementation part is hardly entertained by all the three organs. Thus, it would be worthwhile if awareness is made and a new policy to that effect is made so that the verdict is mandated.

The author is a third-year law student from National University of Study and Research in Law, Ranchi

Image Credits: Shutterstock


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