- HD., E. 2016/12231 K. 2018/2059 T. 5.3.2018
COURT: FAMILY COURT
As a result of the court’s judgment of the pecuniary and non-pecuniary damages case between the parties, upon the appeal by the defendant’s attorney within the time limit of the decision to partially accept the case; After the decision to accept the appeal petition, the papers in the file were read and the necessary consideration was taken:
Y A R G I T A Y A R A R I
Plaintiff; He met the defendant in 2005, they became increasingly close emotionally, they decided to marry with their common will, he introduced the defendant to his sister and brother-in-law, the traditional engagement ceremony was not held because he had no parents, he received the wedding day after long marriage plans, he had wedding candy, invitations made, and told him that alleging that he distributed the dowry to the defendant’s house in …, but that the defendant did not attend the wedding and that his personal rights were violated, and the rights of the surplus were reserved, the dowry he spent for engagement and partnership was transferred to … For the present values, 1.000 TL pecuniary damages and 50,000 TL non-pecuniary damages are collected from the defendant, the goods are returned as they are, provided that they have not been used, and if it is not possible to return the same, the price be refunded.
Defendant; arguing that there was no engagement between the plaintiff and the plaintiff and that the plaintiff paid for the goods brought to …
By the court; it was decided to accept the case for the goods, to refund the price of the goods exactly as they are, if it is not possible to return the goods exactly, to partially accept the non-pecuniary damage case, to receive the compensation of 15,000 TL from the defendant and to be given to the plaintiff, to reject the claims regarding the surplus, the judgment was appealed by the defendant.
1- Litigation; regarding the claim for pecuniary and non-pecuniary damages. In accordance with Article 4 of the Law on Establishment, Duties and Trial Procedures of Family Courts, cases and affairs arising from family law within the scope of the second book of the Turkish Civil Code no. 4721 (excluding 3 parts) and the Law on the Enforcement and Implementation of the Turkish Civil Code No. 4722 are heard in the family court.
As emphasized in the decision of the Supreme Court of Appeals to Unify the Judgment of 04.06.1958, numbered 15/6; It is the duty of the parties to explain the material facts based on a case, to qualify these facts legally, to search for and correctly interpret and apply the articles of law to be applied. In an other saying; It is up to the parties to describe the material event in a case, and to the judge to make the legal qualification. (HMK. article 33). According to the aforementioned legal regulation, the legal qualification regarding the resolution of the dispute should be made, since the task of clarifying the case belongs to the court judge.
The court decided on the merits of the case, stating that the dispute was based on the breach of engagement based on Article 121 of the TMK.
Engagement; It is a kind of promise that a girl and man of marriageable age will marry by their families and close friends in line with the customs and traditions of the region.
Engagement is a family law contract and it is regulated in Article 118 of the Turkish Civil Code and no form requirement has been imposed. In order for the engagement to be legally valid, it must be made in a certain ritual, the engagement must be announced (announced) and it must be done within the framework of the testimony of family members.
Although the plaintiff claimed in the lawsuit petition that his personal rights were damaged due to the deterioration of the engagement, he requested material and moral compensation; As there is no engagement ceremony between the parties in the traditional sense, this issue is also accepted by the plaintiff.
In the concrete case; The parties have met informally at regular intervals, and in this case, it is not possible to talk about engagement and a legally protected union. As it is understood from the scope of the file that the parties are not engaged, the relationship between the parties should be evaluated not according to the principles of family law, but according to the rules of the law of obligations, especially the provisions regarding the wrongful act.
The rules of duty are related to public order, and the court’s duty in accordance with Article 114/1-c of the HMK is within the conditions of the case. The court should automatically consider whether it is in charge or not at every stage of the proceedings.
In that case; In the case at hand, there is no claim for compensation based on engagement, but due to tortious act, a decision of non-jurisdiction should be made by evaluating within this framework and the file should be sent to the Civil Court of First Instance.
In the light of all these explanations; Considering that the dispute did not fall within the jurisdiction of the Family Court, a decision of non-jurisdiction should have been given, but the establishment of a written judgment on the merits of the case was not correct and required annulment.
2-According to the reason and form of reversal, it was not deemed necessary to examine the defendant’s appeals at this stage.
CONCLUSION: Written judgment is inaccurate, without taking into account the principles explained in the first paragraph above, and the judgment is BOZU pursuant to Article 428 of the HUMK.LMASINA, as explained in the second paragraph, that there is no need to examine the defendant’s appeals for now, and that the appeal fee paid in advance is returned to the appellant upon request, within 15 days from the notification of the decision in accordance with Article 440 of the HUMK no. It was unanimously decided on 05.03.2018, with the way of correction open.
