T.C. Supreme Court 2. Legal Department, Main No:2016/13219, Decision No: 2016/11931
COURT : Family Court
TYPE OF CASE : Divorce
The decision given by the local court at the end of the dec between the parties, the date and number shown above, by the plaintiff woman, determining the defect, denying compensation claims, the amount of poverty alimony, joint children…. and….an appeal was made in terms of custody of the, and the documents were read and discussed and considered as necessary:
1-According to the articles in the FILE, the evidence on which the decision was based, the reasons in accordance with the law, and in particular the fact that there was no inaccuracy in the appreciation of the evidence, the plaintiff’s appeals, which are outside the scope of the following paragraphs, are inappropriate.
2-the man from the scope of the defendant’s case file, he did not answer the petition against the investigation phase, during which the plaintiff claims that the woman is fulfilling its role of unity by the court, who do not fulfill their responsibilities in the events that lead to the divorce of the parties, reached the conclusion that the case was flawed equally by the parties to the divorce to alimony in favor of the admission of women resulted where the man was given custody of the defendant, when the woman is understood to have decided to rejection of claims.
141 Of the Code of Civil Procedure entitled ’Expansion or modification of claims and defense”. article “(1) The Parties may freely expand or modify their claims or defenses with the express consent of the other party at the preliminary examination stage. If one of the parties does not come to the preliminary examination hearing without an excuse, the incoming party may expand or change its claim or defense without seeking its consent. After the completion of the preliminary examination stage, the claim or defense cannot be extended or changed. (2) The provisions of reclamation and the express consent of the other party on the expansion and modification of the claim and defense are reserved.”.
The aforementioned article of the petition of the parties as stated in the justification of their mutual phase without any restriction in the general framework of the dispute were allowed to change their claims and defenses ….undoubtedly, this possibility exists only for the answer to the answer and the second answer petition. After two petitions, petitions that will be submitted under any name must be accepted within the scope of limitation and prohibition. At the preliminary examination stage, it was agreed to expand or amend the claims or defenses only if the other party’s explicit consent (or one of the parties did not come to the preliminary examination hearing without an excuse) was accepted. (General Assembly of the Court of Cassation Law dated 20.04.2016, Decree No. 2016/522 of 2014/2-695) In this case, there is no response petition within the period after the petition of the case has been duly notified to the defendant on 14.07.2014, so there is no evidence put forward as the basis of the defense (HMK m. 129/1-e) since there is no legal possibility for the local court to give the defendant time to give evidence, it must be accepted that there is no legal possibility.
As such, it was not considered correct to impose a defect on the plaintiff woman taking into account the claims and defenses of the defendant party, which did not provide a response petition during the period and did not report its evidence. 174/1-2 Of the Turkish Civil Code for the benefit of the plaintiff woman, the defendant man who does not fulfill his union duties in the events that cause a divorce in the face of this situation, who has a habit of alcohol and gambling, insults his wife and wife’s family, is fully defective and the plaintiff is for the benefit of the woman. the following conditions have been established. However, due to the fact that the parties were considered equally defective by the court and determined this erroneous defect, the rejection of the plaintiff woman’s claims for pecuniary and moral damages was not correct and required to be overturned.
3-According to the realized social and economic situations of the parties, the nature of the alimony, the economic conditions of the day, the poverty alimony, which is appreciated for the benefit of the plaintiff woman, is small. 4 Of the Turkish Civil Code by the Court. considering the principle of equity in the article, a more appropriate amount of alimony should be determined. The establishment of a provision in writing without observing this direction is contrary to the procedure and the law.
CONCLUSION:2.Above the appealed provision. and 3rd. for the reasons shown in paragraphs 1 above, the other parts of the subject matter of the appeal that are outside the scope of the violation are DAMAGED for the reasons shown in paragraphs 1. it was unanimously decided that the application fee should be refunded to the depositor if requested, and that the way to correct the decision should be open within 15 days of the notification of this decision.20.06.2016
