1. This appeal arises out of Judgment rendered by learned District Judge, Kopargaon, in proceedings under the Guardian and Wards Act. By the impugned Judgment, application filed by respondent No.1 - Sou.Sumanbai for custody of minor - Sudarshan was granted with further direction to submit quarterly reports about his health to the Court.

2. The factual matrix depicts pathetic social aberrations of which the minor (Sudarshan) is the unfortunate victim. Subhash and Jyoti entered wedlock on 5.12.1996. They were blissed with the male child (Sudarshan) on 9.2.1998. The minor - Sudarshan @ Chhotu was hardly three years old when Subhash met with untimely death. He was afflicted with HIV and died of AIDS. The minor was admitted in an English medium school at Shirdi by his uncle and the grandmother i.e. applicant - Sumanbai. Unfortunately, Jyoti was also suffering from AIDS. She too died of AIDS during pendency of the application. She went to reside with her parents alongwith the minor in or about June 2004. Appellant Nos.1 to 3 are parents and brother of Jyoti.

3. Original applicant - Sumanbai urged for custody of the minor on the ground that mother of the minor was unfit to look after his welfare. She asserted that mother of the minor, viz., Jyoti was suffering from AIDS and was unable to properly maintain the minor child. She further asserted that there was no proper medical facility available in village Rahata where, the parents of Jyoti reside. She asserted that the maternal relatives of Jyoti were unable to provide medical help to minor - Sudarshan and his physical health would be endangered, if his custody would be continued with them because the minor also is afflicted with HIV. She asserted that she would be in a better position to provide good medical help to minor - Sudarshan if his custody is given to her. Hence, the application u/s.17 of the Guardian and Wards Act was filed.

4. The application was resisted by mother of the minor (Jyoti) and the appellants who were joined as parties.

5. The learned District Judge came to the conclusion that original applicant (Sumanbai) is entitled to custody of the minor since it would be in the interest of the minor and for his welfare that his custody be with her. The application was accordingly granted.

6. Feeling aggrieved, the appellants preferred this appeal. They submitted that the minor was brought up by them and they were fit to look after his welfare. They submitted that the original applicant being stepmother of deceased Subhash, is not entitled to claim the custody. They further submitted that the original applicant did not allow Jyoti to stay with her in the marital home and, therefore, a suit (Spl.C.S.No.29 of 2004) for partition and separate possession was filed by the minor and his mother - Jyoti against the original applicant and other members of the joint family of deceased Subhash. They alleged that the application was filed in order to frustrate the claim for partition to which the minor is entitled. They further contended that they are properly maintaining the minor and are looking after his welfare in an appropriate manner.

7. Mr.Kulkarni, learned Advocate appearing for the appellants would submit that deceased Jyoti was required to sue for partition as guardian of the minor. He would point out that the suit was filed on 31.7.2004 and thereafter, the custody application was moved on 24.8.2004. He contended that the custody application was moved by the original applicant with oblique intention to counterblast the suit. He argued that the minor - Sudarshan expressed desire to remain in the company of the appellants and was not ready to go to house of the original applicant, yet the application was granted without considering the wishes of the minor. He would submit that the wish of the minor cannot be ignored in view of Section 17(3) of the Guardian and Wards Act. He would further submit that the appellants have taken proper care to provide medical facility. He