Manvi Sahni

The recent judgement of Akella Lalitha v. Konda Hanumantha Rao(Akella) is being celebrated all across the nation as the epitome of gender equality. In this case, the Supreme Court (SC) ruled that the mother, as the sole natural guardian, has the right to choose the surname of her children or offer them in adoption to her present husband in the aftermath of the death of their biological father.  However, there are several inadequacies present in the implementation of this verdict. This paper aims to examine the social and legal impact of this ruling on Indian society. This has been done by unravelling the two primary loopholes which essentially point towards the difficulty in the implementation of this verdict in Indian society. Consequently, it also focuses on how the disguised equality between both parents, which has been emphasised in the ruling, is actually conditional in nature.

Introduction

A surname refers to the common family name that a person shares with their family members. It should not be understood simply within the context of one’s culture, lineage, or history. Instead, we should focus on its role in social realities and in encouraging a sense of belongingness for children. Ever since time immemorial, patriarchy has persisted in our society and has paved the foundation for our civilization. Naturally, this led to an unhealthy gender power dynamic and the predominance of the father’s surname in society. However, there is a need to deliberate on the rights of a mother in this equation and embody the same within our laws. 

This paper first, provides a descriptive account of the Akella verdict while analysing the provisions of the Hindu Minority and Guardianship Act, 1956 (HMG Act). Second, it probes the repercussions of this ruling on Indian society and sheds light on the various lacunae present in the implementation of this judgement. Third, this paper presents a brief examination of a recent judgement of the Italian Constitutional Court (ItCC) which deals with a similar question of law, as in the Akella verdict, in the Italian context. This aids in highlighting the contrast between the outcome of the Italian case and the Akella ruling. Ultimately, this article asserts that there is an imminent need for legislative reform in certain provisions of the HMG Act in order to truly realise the actual purpose of the Akella verdict i.e., gender equality.

Akella Lalitha v. Konda Hanumantha Rao: A Brief Overview

In the recent judgement of Akella, the legal issue requiring adjudication was whether the mother, as the sole natural guardian of the child following the death of the biological father, can choose their child’s surname and give the child for adoption to her husband after remarriage.  

Initially, this case was brought in front of the Andhra Pradesh High Court (HC) which held that the father’s surname was required to be restored as the child’s surname within three months and the name of the natural father was to be displayed, wherever possible, as the child’s father. It further ruled that, if required, the name of the mother’s present husband could only be mentioned as the stepfather of the child in official documents. The mother of the child then appealed to the SC against this verdict of the HC.

Consequently, the apex court relied on Githa Hariharan and Ors v. Reserve Bank of India and Ors (Githa) to evaluate this question of law. Here, the SC was deliberating on whether the mother can appear as the natural guardian of the minor child and if Section 6 of the HMG Act, which bestows on the father the status of the primary natural guardian of the child throughout his lifetime, can be struck down. Ultimately, the court held that the mother can be considered the primary natural guardian of the minor child in light of the father discharging control of the minor’s affairs to the mother, either implicitly or expressly, even throughout the lifetime of the father.

Therefore, the apex court in Akella ruled that both the mother and father are given equal status, in light of the Githa verdict, which strengthens the mother’s role as the minor child’s natural guardian in accordance with Section 6 of theHMG Act. Moreover, the court was of the opinion that as per Section 9 of the Hindu Adoption and Maintenance Act, either of the parents is entitled to give the child in adoption following the other’s demise, and thus, there was nothing unusual in the current matter.

Additionally, it was opined that the mention of the current spouse as the child’s stepfather in official documents does not take into account 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 give them for adoption.

Impact of this Judgement on the Indian Society

Through this judgement, the mother’s status as the child’s natural guardian has been reaffirmed. On the surface, this may appear to be a validation of the existing apparent equality between the parents. Nevertheless, a closer examination of the impact of this judgement on society is required to fully comprehend the lacunae and inadequacies present.

Firstly, on a critical analysis of Section 6 of the HMG Act and the Githa judgement, it comes to light that both of these sources propagate the idea of conditional gender equality. As per the language of Section 6, the father is the first natural guardian of a legitimate unmarried child and after him, the mother. This attacks the claim in the current judgement that the ruling of Githa elevates both parents to an equal footing because, in the hierarchy of guardianship of a minor legitimate child, the mother is always second to the father. Consequently, it also reinforces the institution of patriarchy in society. Therefore, as stated in Githa, this right of choosing the surname of her child can be practised by the mother only when the father is either dead or absent from the realm of controlling the affairs of the minor.

Secondly, the Akella ruling does not guarantee the practical implementation of such a right for mothers. In our society, there is hesitance to use the mother’s surname to prevent the stigmatization of the child as illegitimate.[1] This is because as per Section 6(b) of the HMG Act, the mother is the first natural guardian only for illegitimate children. Moreover, our society equates the practice of giving non-patrilineal surnames with a loss of authority for men.[2] Thus, the mother cannot liberally exercise this legal right of naming her child without being reprimanded by society for the same.

Therefore, while this verdict may be considered a stepping stone in instilling the principle of gender equality within society, yet, the efficacy of this verdict in achieving the same remains dubious in light of the highlighted lacunae.

Italian Constitutional Court’s Judgement Number 131/2022: A Critical Analysis

Recently, the ItCC was also faced with a similar question of law as that in the Akella ruling. Thus, it becomes imperative to analyse the same in order to highlight the contrast between the two judgements. The legal issue in this particular case was whether parents, by mutual agreement, are entitled to transmit to the child only the maternal surname at the time of birth.

The current practice of automatic attribution of the father’s name to the child sacrifices the personal identity of the child by denying them the possibility of identifying with the maternal surname.[3] It also leads to the invisibility of the mother in the familial structure which is indicative of gender discrimination against women. This violates the principle of equality.

Surname forms the intertwining link between the child’s right to personal identity and the equal dignity of the parents. The current system has been derived from the patriarchal understanding of the family and is incompatible with the constitutional principle of gender equality. Thus, the judges, in this case, have rightfully ruled that going forward, parents are entitled, by mutual agreement, to transmit to their child either the father’s or mother’s surname alone or both the surnames in the order agreed by them.

While comparing this ruling with the Akella judgement, it is evident that first, the latter propagates the idea of conditional gender equality, which reinstates a hierarchy within parenthood where the father is superior to the mother. This, thereby, furthers the idea of patriarchy in society. However, the Italian ruling adopted the feminist view which aims for absolute equality between parents and prioritises the personal identity of the child along with the dignity of the mother.

Second, the Akella judgement had adhered to the written letter of the law irrespective of its discriminatory nature. Thus, even though Section 6 of the HMG Act is evidently in violation of the idea of gender equality, which has been guaranteed to the citizens under Article 15 of the Constitution of India, yet, the same was not acknowledged by the judiciary. In contrast to this, the Italian judgement abided by the spirit and purpose of the law by ensuring equal status for the mother in the family. Otherwise, the contrary could leave an indelible imprint on the child’s mind.

Therefore, it is evident that while the Italian ruling takes into account the need for social transformation, the Akella ruling, on the other hand, sticks to the patriarchal notions of the society and in a way exemplifies the same by leaving them unaddressed. 

Conclusion

In furtherance of the arguments presented, it is crystal clear that there is scope for India to learn from Italy while implementing policies to deeply embed the virtues of true gender equality so as to ensure the autonomy of the mother. Surnames are not just reflective of the social background but, it is also indicative of the self-esteem and dignity of the child. The existence of a power hierarchy between the parents within the family can have adverse consequences for the child. This indicates the necessity to introduce a system that is more respectful of the autonomy of both the parents and the child.

Therefore, it is the need of the hour that the Indian legislature attempt to reform the provisions of the HMG Act to make it more gender-neutral and in compliance with the ideal of gender equality, as enshrined in the Constitution. Additionally, it is essential that the judiciary moves away from a strictly formalistic reading of the law by being restrained by the language of the law and instead, delves further into the re-interpretation of existing laws. This will aid in ensuring that the dignity of both parents within the familial context is protected and the child’s personal identity is also safeguarded.

The author is an undergraduate student at NLSIU and an observer at LSPR.

[1] Colleen Nugent, ‘CHILDREN’S SURNAMES, MORAL DILEMMAS: Accounting for the Predominance of Fathers’ Surnames for Children’ (2010) 24 Gender and Society 499,503.

[2] ibid 500.

[3] Corte Constituzionale, sez. uni., 27 April 2022, n. 131/2022, 2022 (It.) [2.2] translated version.