T.C. SUPREME
8.law office
Based on: 2017/16734
Decision: 2018/252
Date of Decision: 11.01.2018
THE CASE FOR THE DENIAL OF THE GENEALOGICAL BOND – THE ONE-YEAR PERIOD OF THE RIGHT REDUCTION WILL BEGIN ON THE DATE OF LEARNING – THE DOUBT CANNOT BE CONSIDERED SUFFICIENT FROM THE POINT OF VIEW OF LEARNING – IT MUST BE ACCEPTED THAT THE CASE WAS FILED WITHIN THE PERIOD – THE VIOLATION OF THE PROVISION
SUMMARY: The case concerns the request for the rejection of the genealogical bond. When it is considered that the plaintiff wants to determine whether the child is from him or not and determine the reason, but no previous examination has been conducted in this direction; it is understood that the “learning” phenomenon of the nature of the beginning of the period did not occur in the relevant article regulating the period of right reduction in respect of the case of denial of lineage connection, that is, the plaintiff did not take a DNA test type examination to eliminate the doubt that the child was not himself, and the doubt did not go one step further to scientific accuracy, that is, it existed as a doubt; it is not accurate for the court to reject the case because the case had passed the period of right reduction.
(4721 Pp. K. m. 285, 286, 289) (6100 Pp. K. Late. m. 3) (1086 P. K. m. 428, 440) (ANY. MAH. 25.06.2009 T. 2008/30 E. 2009/96 K.)
Case: At the end of the trial between the parties in the case described above, the Court decided to dismiss the case and upon the appeal of the judgment by the plaintiff, the dec was examined and the case was considered as necessary.
Decision: In the petition for action, it was requested to decide on the rejection of the intermediate lineage by stating that the defendant … and the common child … were not the children of the plaintiff …; the court decided to dismiss the case by betting that the one-year decriminalization period provided for the rejection of the lineage had passed.
The case is related to the denial of the soybağı filed by the father against the child and the mother, regulated by Articles 286 and the continuation of the Turkish Civil Code No. 4721, and related to the denial of the soybağı filed against the child and mother.
In a broad sense, bloodline refers to a person’s blood connection with their upper dec; in a narrow sense, bloodline refers to a person’s biological connection only with their parents. A person (child) with the help of biological (genetic) is derived as the bond between the people paternity natural (biological relationship), with the realization of the rule of law sought by some conditions, as a result of connecting to a legal parent of a child, if that is the legal relationship between parent and child is established legal paternity (legal relationship) is called. According to this, decency is defined as the natural and/or legal connection between a person and his parents.
According to the Turkish Civil Code No. 4721, the legal lineage between the child and the mother is established by birth, and the legal lineage between the child and the father is established by marriage with the mother, recognition, dec dec or adoption in the paternity case. To be born in a marriage between father and child, to the decency of paternity (TMK md. 285), the disappearance of the kinship relationship, which is legally established on its basis, can only be brought into question by the rejection of the kinship. As a result of the success of the decriminalization case and the disappearance of the kinship between the child and his father, the child becomes a child who does not have a kinship from the father’s side. The Constitutional Court’s decision of 25.06.2009, 2008/30 E. and 2009/96 K. as stated in decision No. 1, the right of a person to refuse a child whose genetic-biological origin does not belong to him is one of his most fundamental rights.
286 of the Turkish Civil Code No. 4721. in its article, the husband can refute the presumption of paternity with a case of denial of the lineage that he will file against the child and mother; 289. in substance, the case and the birth of the denial of the husband’s paternity that he was not the father or the mother is pregnant with another man while in a sexual relationship should be open within a year starting from the date of knowledge that exists, and if the cause of the delay, the reasons to justify that makes the one year period shall begin after the removal of threats.
In the case of the denial of lineage, it should be emphasized whether the doubt is sufficient in terms of learning at the point when the “learning” that is decisive in the case’s basing and whether the case was opened within the time limit of the denial of rights occurs. In established Supreme Court applications, paternity reports obtained outside the trial are taken into account, especially in terms of the fact that the trial period, which is a right-lowering period, begins from the date of learning, that is, it is assumed that the right-lowering period will begin at the moment when learning occurs with a non-judicial paternity test. Therefore, the suspicion that a child is not from himself will not be considered sufficient in terms of learning.
In a concrete case, the plaintiff father … and the defendant mother Ilknur were married on 06.06.2003 and divorced on 11.05.2012, and in was born on 05.07.2005, shortly before the divorce decision was made, the defendant said during an argument that the child was not the father himself, that the plaintiff repeated this when the divorce was filed to determine whether the child was from him and determine the reason, but in this direction, a previous examination when it is evaluated that it is not done; in order to eliminate the plaintiff’s suspicion that the child is not himself, a DNA test-type examination was not performed and the suspicion did not go one step further to reach scientific accuracy, that is, it exists as a doubt, 289, which regulates the period of justification in terms of a case of denial of lineage.it is understood that the phenomenon of “learning”, which is the beginning of the period in the article, does not occur; the court accepted that the case was filed within the period of time and entered into the basis of the work, collecting the evidence of the parties in accordance with the claim, conducting the necessary DNA examination to determine the cold case, and a decision should be made according to the result, while the rejection of the case from the unfair period was not considered correct.
Conclusion: With the acceptance of the appeals of the plaintiff’s deputy, the provision of the Provisional Article 3 of the HMK No. 6100 for the reasons described above. article 428 of the HUMK No. 1086. in accordance with article 440 / I of the HUMK, the parties may request a correction of the decision within 15 days from the notification of the Supreme Court of Appeals, if requested, the refund of the advance fee to the appellant, on 11.01.2018, was unanimously decided to be OVERTURNED in accordance with Article 440 / I of the HUMK.
