JUDGMENT :

G.CHANDRASEKHARAN, J.

1. These Civil Miscellaneous Appeals are filed against the common order passed by the learned VII Additional Judge, Family Court, Chennai in GWOP No.2202 of 2017 and I.A.No.1949 of 2017 in GWOP No.2202 of 2017 on 22.07.2020.

2. The appellant, as the petitioner, filed a petition under Section 7 of Guardian and Wards Act, 1980 to appoint her as guardian of wards and to have the custody of minor Abubaker and minor Sheik Abdul Kader, aged 10 years and 9 years respectively against her former husband Thiru.M.A.Kazhi Alaudeen. The said Kazhi Alaudeen filed a counter claim in I.A.No.1949 of 2017, to appoint him as guardian of minor Abubaker and minor Sheik Abdul Kader and to have their custody with the prayer to dismiss the petition filed by the appellant.

3. The facts of the case, in brief, are as follows:-

Appellant's first marriage with the respondent was held on 09.05.2004. Out of the said wedlock, two sons master Abubaker and master Sheik Abdul Kader were born on 11.03.2007 and 14.08.2008 respectively. Due to strained marital relationship, the marriage between the appellant and respondent came to end by the appellant obtaining divorce (by kula) during June 2012. Thereafter, respondent remarried one Ayisha and the appellant also got remarried with Riyaz Ahamed on 15.07.2016. After the first marriage was broken, appellant resided at Kayalpattinam along with two sons for some time and now residing in Choolaimedu, Chennai. Master Abubaker was studying 6th standard. Master Sheik Abdul Kader is a problematic child having 'low average intelligence with behaviour problem' and he is under treatment. At the age of studying 5th standard, he is studying 3rd standard in SIET Boys School, Chennai. Appellant is taking care of minor children. Respondent is trying to get the custody of minor children by hook and by crook. He tried to kidnap the children and spoil the peaceful marital life with the appellant's second husband Riyaz Ahamed. For the paramount interest of the minor children, it is necessary that the custody of the minor children should be left with appellant. Therefore, this petition.

4. Respondent opposed the claim of the appellant by filing counter claim. He admitted his marriage with appellant and the birth of two sons. He disputed appellant's claim that the second child is suffering from 'low average intelligence with behaviour problem', but claimed that he has 'low average intelligence in studies and not in his behaviour'. He has taken the second son to many physicians at Trichy, Chennai and CMC at Vellore for his treatment. Appellant, after her second marriage, is not able to take care of welfare of the minor children. Till her second marriage, respondent was closely monitoring the progress of the children and also was providing for their maintenance. Appellant's second husband Riyaz Ahamed has two children through his first wife. Appellant, her parents, respondent's two sons and Riyaz Ahamed's children are staying with Riyaz Ahamed in a small house. Neither appellant nor Riyaz Ahamed has regular or sufficient income to meet the expenses and provide a quality life to the minor children. Riyaz Ahamed is a total stranger to respondent's minor children. After the appellant's second marriage, respondent sought custody of minor children and the matter was referred to Islamic scholars. After hearing both sides, Islamic scholars issued temporary fatwa giving custody of minor children to appellant for the reason that respondent's second wife was carrying at that time and second son was having learning problem. It was further decided that after completion of academic year 2016-17, a permanent fatwa will be issued after hearing the parties. Under the said circumstances, custody of minor children were entrusted with the appellant on temporary basis. As per temporary fatwa, custody of minor children was handed over to the respondent during vacation. On 02.06.2017, appellant kidnapped minor children from respondent