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2022 (7) TMI 1486 - SC - Indian LawsChange of Surname of minor child after death of biological father - Appointment of Guardians to the Minor Child - grant of visiting rights of the minor child pending disposal of O.P. Whether the mother, who is the only natural/legal guardian of the child after the death of the biological father can decide the surname of the child. Can she give him the surname of her second husband whom she remarries after the death of her first husband and can she give the child for adoption to her husband? - HELD THAT:- While an adoption deed is not necessary to effect adoption and the same can be done even through established customs, in the present case the Appellant submits that on 12th July, 2019, during the pendency of the present petition, the husband of the Appellant/ step father of the child adopted the child by way of Registered adoption deed - While the main object of adoption in the past has been to secure the performance of one’s funeral rights and to preserve the continuance of one’s 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. Whether the High Court has the power to direct the Appellant to change the surname of the child specially when such relief was never sought by the respondents in their petition before the trial Court? - HELD THAT:- 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. In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors. [2009 (11) TMI 942 - SUPREME COURT] 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. 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. The appeals stand allowed in part.
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