THE FAULT OF THE HUSBAND WHO ABUSED HIS WIFE-SUPREME COURT DECISION

22 Apr THE FAULT OF THE HUSBAND WHO ABUSED HIS WIFE-SUPREME COURT DECISION

T.C.
SUPREME COURT
GENERAL ASSEMBLY OF LAW
E. 2012/2-527 K. 2012/767 T. 7.11.2012
CASE: At the end of the trial between the parties for “divorce, financial, non-pecuniary damages and nakaka” cases; Izmir 13. dec. 01.10.2009 day and 2008/726 E. Given by the Family Court on the partial acceptance of the alimony case for the acceptance of the divorce case., 2009/819 K. upon request by the defendant- counter-plaintiff’s deputy to examine the numbered decision, the Court of Cassation 2. 16.05.2011 day and 2010/7774 E of the Legal Department., 2011/8480 K. with the numbered spoilage hymn;

( … 1-legal reasons for the decision with the evidence in the file is based on the posts and especially in the events that lead to divorce his wife gerektirici violent, who insulted “the boy stands, you will I don’t want kids” in the form of words] and the relatives of his wife, “take your child away, saying,” averse to live with the plaintiff-respondent response applying violence to his wife, the husband, who insulted the defendant-the plaintiff is corresponding according to her more heavily flawed; for this reason, the court’s equal flaw acceptance is off the mark, if the husband divorce 166/2 of the Turkish Civil Code. according to the fact that it was accepted in accordance with the article, the divorce decision made due to the acceptance of the husband’s divorce case was found to be correct as a result of the above reason, the woman’s appeals against this direction and appeals that fell outside the scope of the following paragraphs were found to be inappropriate.

2- 174/1 of the Turkish Civil Code. article 186 A perfect or less defective party whose existing or expected interest is rendered invalid by divorce may request appropriate financial compensation from the defective party. the article stipulated that the spouses would choose the house together and that they would participate in the expenses of the union with their labor and property assets at the rate of their power. From the collected evidence, it becomes clear that the spouse who seeks financial compensation for the events that caused the divorce is not more likely and equally defective than the other. As a result of the divorce, this spouse has lost at least the financial support of the other. In that case, the court shall determine the social and economic status of the parties, as well as their defects and the principle of fairness (TMK. Md. 4 BK. md. 42 and 44 ), taking into account that an appropriate amount of material compensation should be provided for the benefit of the plaintiff-plaintiff woman in exchange for the defendant. It was not considered correct to ignore this aspect.

3-Article 174/2 of the Turkish Civil Code provides that a party whose personal rights have been attacked due to events that have caused a divorce may seek moral compensation from the defective one. From the collected evidence, it is understood that the defendant-plaintiff woman who seeks compensation for the events that caused the foundation of the marriage union to be shaken is not severely or equally defective, and these events constitute an attack on her personality rights. In that case, the court shall determine the social and economic situation of the parties, the weight of the act based on compensation and the rules of equity (TMK. Md. 4 BK. md. 42.43.44.49 ), taking into account that the defendant-respondent should be awarded an appropriate amount of non-pecuniary compensation for the benefit of the plaintiff woman. It was not considered correct to ignore this aspect… ),

The grounds were overturned and the file was returned to its place, but at the end of the retrial, the court resisted the previous decision.

After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:

DECISION: According to the mutual claims and defenses of the parties, the minutes and evidence in the file, the necessary reasons explained in the decision to overturn, the decision to overturn the Special Chamber adopted by the General Assembly of Law should be followed, while resisting the previous decision is contrary to procedure and law. Therefore, the decision to resist must be overturned.

CONCLUSION : The decision of the defendant-counter-plaintiff to resist with the adoption of appeals by his deputy was made for the reasons described in the decision of the Special Chamber to overturn Article 30 of the Law No. 6217. article 429 of the Code of Civil Procedure No. 1086, which is being applied with the reference to “Provisional article 3” added to the Code of Civil Procedure No. 6100. In accordance with the article, it was decided unanimously on 07.11.2012 to CANCEL it, return the advance fee of the appeal to the depositor on request, within 15 days from the notification in accordance with Article 440/1 of the same Law, the way to correct the decision will be open on 07.11.2012.

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