“Justice Text”
COURT: Istanbul Regional Court of Justice 38th Civil Chamber
TYPE OF CASE: Divorce
At the end of the proceedings of the case between the parties, the judgment rendered by the regional court of law, the date and number of which is indicated above, was appealed by the claimant male in its entirety, the document was read and the necessary was discussed:
At the end of the trial made by the first instance court; TMK 166/1 with the acceptance of the claimant man’s case, assuming that the woman is completely at fault. In accordance with the article, it was decided to divorce the parties and their accessories, and against this decision made by the first-instance court, the defendant woman applied to the law of appeal in all aspects.
As a result of the examination made on the file by the regional court of appeal, which examined the appeal; “The fact that she applied social violence by interfering with her husband’s dressing style, the meetings she attended and the people she would meet”, which was attributed to the woman from the evidence gathered by the first-instance court, was clearly and duly not relied on by the plaintiff man. In the petition, the plaintiff man claimed that the marriage union had become unbearable on the grounds that the woman had a dominant character, constantly exhibited quarrelsome attitudes, insulted her husband and kicked him out of the house, and did not take care of her house, children and husband, and did not rely on any other facts. The court cannot decide on the basis of the case that is not duly asserted and determined as contentious (HMK art. 137,140/3,187) (HMK art. 141). In this respect, it is not possible to blame the defendant as a fault on the ground that a case that is not based on is mentioned in the witness statements”. While the case should be rejected, it was decided to accept the appeal of the defendant woman, the decision of the first instance court to be abolished, the case of the man to be rejected. appealed by.
Article 141 of the Code of Civil Procedure, titled “Expanding or changing the claim and defense,” states that “(1) Parties freely submit their reply and second reply petitions; In the preliminary examination phase, they can expand or change their claims and defenses only with the express consent of the other party.
If one of the parties does not come to the preliminary examination hearing without an excuse, the arriving party may expand or change its claim or defense without the consent of the party. The claim or defense cannot be extended or changed after the preliminary examination phase has been completed. (2) Provisions of correction and express consent of the other party regarding the extension and modification of the claim and defense are reserved. As stated in the justification of the aforementioned article; It has been accepted that the parties can change their claims and defenses within the general framework of the dispute, without any limitation, at the stage where they submit their mutual petitions. Undoubtedly, this possibility is only available for the reply and the second reply petition, the petitions to be submitted after two petitions, under any name, must be accepted within the scope of limitation and prohibition. During the preliminary examination phase, it was accepted to expand or change the claims or defenses only if the other party’s express consent (or one of the parties does not attend the preliminary examination hearing without an excuse) (Court of Cassation Law General Assembly dated 20.04.2016, the decision numbered 2014/2-695 and decision no. 2016/522). ).
In the concrete case; As it is stated in the lawsuit petition that the plaintiff man “constantly tries to dictate what he says as a dominant character”, the defendant woman did not attend the preliminary examination hearing duly notified without any excuse, and in this preliminary hearing, the man relied on the cases of “not taking care of the children and the house”. In the face of this situation, the decision to reject the lawsuit of the plaintiff man by the relevant regional court of appeal can be taken as a basis for the cases where his wife, determined by the first instance court, inflicted social violence by interfering with her dressing style, the meetings she will attend and the people she will meet, “not taking care of her house, children and spouse” can be taken as the basis of the decision. and required breaking.
CONCLUSION: It was unanimously resolved that the appealed judgment be OVERFINED for the above-mentioned reason, that the appeal fee be returned to the depositor upon request, and that the file be sent to the relevant regional court of appeals legal chamber. 16.03.2020 (Mon.)
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