2. Legal Department 2014/20635 Base. , 2015/9686 Decision

“text of jurisprudence”

COURT :Family Court
TYPE OF CASE : Mutual Divorce

Between the parties “divorce” and “the code of the Local Court against a divorce case made of given by the dates and number shown at the end of the provision of the above, the parties by the appeal; the appeal hearing as required to be done; the day set for the hearing the plaintiff appeals hearing 11.05.2015-proxy Av … against the defendant. … and the other party is the defendant who is appealing the trial-the counter-plaintiff … and the deputy Av. … they’re here. After the conversation of those who came was listened to, it was deemed appropriate to leave it until after the hearing for the work to be examined and decided. Today, all the papers in the file have been read and discussed and considered as necessary:
The defendant-counter-plaintiff filed a counter-divorce lawsuit together with the husband’s response petition. nine witnesses reported their names in the evidence section of the response and counterclaim petition. In addition, the plaintiff-counter stated that the defendant’s second response petition after the response petition was notified to him was related to the proof of the considerations put forward in the response petition to the counterclaim, and included the names of five more witnesses. The evidence is cited for the substantiation of contentious issues. Contentious issues, on the other hand, are identified at the preliminary examination hearing. (HMK.m.140/1) It cannot be expected that the parties will give evidence without identifying the issues on which they have agreed and diverged. At the moment, as a rule, the parties can present and present evidence no later than the beginning of the investigation. The court held a preliminary examination hearing on 31.01.2013 with the peace of the parties, and after finding that the parties could not agree on the preliminary examination hearing, it was decided that the investigation hearing would be held on 02.04.2013. by an interim decision dated 18.07.2013 and 20.02.2014 “the defendant-counter-plaintiff husband submitted to the court before the preliminary examination in the second response petition dated 22.11.2012, the names of which he reported to the witnesses not to be heard “. the decider dated 18.07.2013 and 20.02.2014. It was decided that even if they had been heard, their statements would not be based on the verdict, and the defendant-dec-plaintiff’s objections to these interim decisions were rejected and the statements of these witnesses were not respected. Contentious issues can be determined at the preliminary hearing, the pre-review stage, the parties can freely change and expand their claims and defenses, considering the issues that the defendant’s preliminary examination phase before the evidence presented during the exchange phase is located between the petitions, statements of witnesses, in conjunction with other evidence will be evaluated and must be decided according to the results to be achieved. It was not found correct to establish a judgment with an incomplete examination without taking this issue into account.

CONCLUSION: provision of the reason for the corruption trial of Appeals for the retainer shown above TL 1.100.00 be appreciated and taken from’a provision for the trial of TL and again retainer 1.100.00 be appreciated and taken from’e provision, cause destruction, according to the demands of both parties of the divorce Pharisee and the re-establishment of claims as the analysis of other aspects of the provision is not the place to become mandatory appeal request in advance of the provision of tuition she tucks it back into, within 15 days from the date of notification of this decision, the decision was made unanimously as a result of the majority of votes on the grounds that the way to correct the decision was open. 11.05.2015(Mon.)

POST, VOTE AGAINST

The divorce case filed by the plaintiff (woman) is governed by Article 166/1 of the Turkish Civil Code. according to the article, if it is a counter-divorce case filed by the defendant, it is primarily an “adultery” (TMK. m. 161), if this is not accepted, it will “shake the foundation of the marriage union” (TMK.m.166/1) is based on the reason.
The fact that the evidence relied on by one of the parties to prove their case is not accepted without a legal reason is essentially a reason for disruption (HUMK. m. 428/6). However, although the statements of the witnesses shown by the court in the petition of the defendant-counter-plaintiff’s deputy dated 22.11.2012 were not evaluated on the grounds that they were “the second witness list” and were not based on the verdict; it was accepted that plaintiff-counter defendant (woman) went on vacation with her aunt’s son Ufuk in September 2012, stayed at the same hotel, informed about the incident and found out that the husband would come to the hotel where they were staying, the next day they both left the hotel as if they had escaped, this person came to the joint residence of the parties a few times while the husband was away, stayed overnight and left the house early in the morning. Indeed, this fact is proved by the statements of the witnesses shown by the defendant-counter-plaintiff(s) in the petition dated 25.9.2012 for the answer and the counter-divorce case, as well as other evidence shown in the same petition. In this case, the defendant-counter-claimant, dated 22.11.2012 petition “in the answer of the answer is not true of the other side to prove that the claims about itself,” the court show, “the second witness from the list of statements to the provision mainly, I don’t,” said the witness statement will not have an effect on the results of the evaluation. In order for an error of judgment or a deficiency to constitute a reason for overturning, it must have a modifying effect on the decision. If the procedural deficiency or error is not effective in the decision, the reason for the violation cannot be made (HUMK. m. 428/last). In this regard, we cannot agree with the majority’s opinion that “the witness statements shown by the defendant-counter-plaintiff’s attorney in his petition dated 22.11.2012 should be evaluated together with other evidence and concluded”.
The counter-divorce case filed by the defendant-counter-plaintiff is primarily based on the case of “adultery” (TMK. m. 161), if this is not accepted, it will “shake the foundation of the marriage union” (TMK. m. 166/1) based on the reason; the question is whether the act of the plaintiff-counter-defendant (woman), which took place, should be considered “adultery”. The court considered this act of the woman to be a “confidence-shattering attitude and behavior”. However, the fact that a married woman goes on vacation with a man who is thirty years old, even if he is her aunt’s son, stays in the same hotel and takes this person to a shared residence at night when her husband is not at home several times indicates adultery. According to the evidence in the file, the woman’s adultery took place. So, let’s start with the fact that the divorce case against “adultery” (TMK. m. 161) while it should be accepted due to, 166/1 of the Turkish Civil Code as a result of an error in the evaluation. it has not been correct to make a divorce decision from the article. According to the reason for the violation of the provision for this reason, it should also be decided that the appeals of the husband’s claim for non-pecuniary damages and the appeals of the plaintiff-counter-defendant (woman) are not subject to examination at this stage. For the reason described, we agree with the decision of the majority to overturn it in terms of its result, but we do not participate in its justification.

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