2. Legal Department 2020/1135 E. , 2020/2210 K.
“Oext Of Jurisprudence”
COURT : Istanbul Regional Court of Justice 38. law office
TYPE OF CASE : Divorce
At the end of the procedure of the case between the parties, the decision given by the legal department of the district court of justice, the date and number shown above, was appealed by the plaintiff dec in all aspects, the documents were read and discussed as necessary and considered:
At the end of the trial conducted by the court of first instance; TMK 166/1 with the acceptance of the plaintiff man’s case by accepting that the woman is fully defective. in accordance with the article, it was decided that the parties should be divorced and their fer’is, and against this decision made by the court of first instance, the defendant woman applied to the application law in its entirety.
Who regional appellate review by the tribunal of justice as a result of assessment on file; “a woman of evidence collected by the tribunal of First Instance loaded “to the style of the clothing of his wife, going to meetings and meet the individuals in the intervention social violence” by the plaintiff duly and expressly not a case of male have been unbearable. In the lawsuit petition, the plaintiff man claimed that the marriage union had become unbearable on the grounds that the woman was of a dominant character, constantly showed quarrelsome behavior, insulted his wife and kicked her out of the house, did not take care of the house, children and his wife, and did not rely on any other case. A court that has not been duly brought forward and is not determined to be contentious (H.M. M. 137,140/3,187) cannot be decided on the basis of a case (HMK m. 141). As a result of this, it is not possible to burden the defendant with a bet as a defect because a case that is not based on witness statements has been passed,”the defendant’s request for an appeal has been accepted, the decision of the court of first instance has been removed, the man’s case has been rejected, and this decision has been appealed by the plaintiff’s male district court of justice on the grounds that the case should be rejected.
141 of the Code of Civil Procedure, entitled expansion or modification of claims and defense. article “(1) The Parties may freely extend or amend their claims and defenses with the express consent of the other party if they are at the stage of preliminary examination, but 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 incoming party may expand or amend its claim or defense without seeking its consent. After the completion of the preliminary examination phase, the claim or defense cannot be expanded or amended. (2) The provisions of rectification and the express consent of the counterparty regarding the expansion and modification of the claim and defense are reserved,”it reads. As stated in the justification of the said article; at the stage when the parties submit their mutual petitions, it has been agreed that they can change their claims and defenses within the general framework of the dispute without any restrictions. Of course, this opportunity is available only for the answer to the answer and the second answer petition, after two petitions, petitions to be submitted under whatever name should be accepted within the scope of limitation and prohibition. During the preliminary investigation stage, however, the explicit consent of the opposite party (or one of the parties to the preliminary hearing does not come without an excuse), in case of expansion or modification of Defense or the claim has been accepted (Supreme Court 20.04.2016 date, 2014/2-main and the declaration 2016/522 Decision No. 695).
In a concrete case, the plaintiff’s petition in the man “as a dominant character, constantly trying to dictate what you own is what” the facts as noted, the defendant duly notified of the preliminary hearing to be unexcused also the woman are not joined, the men in this preliminary trial, “unable to take care of the kids and the House,” vakailar relied on. In the face of this situation, the cases where the spouse, determined by the court of first instance, has committed social violence by interfering with the style of clothing, meetings he will attend and the people he will meet, ”does not care about his home, children and wife”, may be based on the decision, it is against the procedure and the law to decide to dismiss the plaintiff man’s case by the relevant district court of justice and required to overturn it.
CONCLUSION: It was unanimously decided that the appealed decision would be OVERTURNED for the reason shown above, that the advance fee for the appeal would be returned to the depositor upon request, and that the file would be sent to the relevant district court’s legal department. 16.03.2020 (Mon.)
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