8th CIVIL CHAMBER | Basis No: 2017/87 | Decision No: 2017/744 “LEGAL PRECEDENT” COURT: Civil Court of First Instance TYPE OF LAWSUIT: Population (Correction of Population Registry)
At the conclusion of the trial conducted in the lawsuit described above; the Court decided to dismiss the case. Upon the appeal of the judgment by the plaintiff’s counsel, the file was examined by the Chamber and the requirements were considered.
D E C I S I O N
In the lawsuit petition, the plaintiff’s counsel claimed that although the plaintiff and his spouse had no children, the defendant … was registered as their own child. It was requested that the registration of the defendant … in the population records of the plaintiff and his spouse … be cancelled, and that the defendant be registered in the population records as the child of … and …. The Court decided to dismiss the case on the grounds that … was registered as a child born within a valid marriage (nesep), and therefore this lawsuit could not be filed as long as the existing lineage (nesep) was not disowned.
The dispute concerns whether the lawsuit is a disavowal of filiation (soybağının reddi) or a lawsuit for the correction of records (kayıt düzeltme davası), taking the lawsuit petition into account.
Pursuant to Article 282 of the Turkish Civil Code (TCC) regarding filiation, the establishment of filiation requires either a blood tie between the child and the parents or the establishment of an adoption relationship. According to Article 282/1 of the TCC, filiation between the mother and the child is established by birth. For this, it is sufficient to determine that the child was born to the woman alleged to be the mother. Whether the woman giving birth is married or not is of no importance for the establishment of filiation.
Regarding the father, pursuant to the presumption of paternity (babalık karinesi) in Article 285 of the TCC, the husband is presumed to be the father of a child born during the marriage or within three hundred days of the termination of the marriage. The rebuttal of the presumption of paternity is only possible through the disavowal of filiation (soybağının reddi) under Article 286 of the TCC.
However, a distinction must be made here: A lawsuit for the disavowal of filiation is a lawsuit that ensures the elimination of filiation for children who benefit from the presumption of paternity. In cases where the child was not actually born to the wife but was registered in the population records as if born to the wife, or where a child born more than three hundred days after the end of a marriage is registered as if born within that period, the lawsuit to be filed is not a disavowal of filiation, but a lawsuit for the correction of records aimed at correcting a false entry (TCC Art. 39).
Regarding lawsuits for the correction of population records: Pursuant to Article 35 of the Population Services Law No. 5490, no record of the population registers can be corrected unless there is a finalized court judgment. Lawsuits for the correction of records, which are not subject to a statute of limitations or forfeiture periods, may rely on any kind of evidence, including witness testimony and DNA testing.
In the concrete case; the plaintiff’s counsel claimed that … (born in 1967) was registered as if born to … and …, but the actual parents were … and …. It was requested that the record be corrected. Filiation between the mother and child is established automatically by birth; therefore, if a child is registered to a woman other than the one who gave birth, it does not mean that a legal filiation was established. The correction of such a false record is achieved through a correction of records lawsuit, not a filiation lawsuit, and can be proven by any evidence.
If it is determined that the actual mother is …, the father will automatically be determined as … by law under the presumption of paternity. Furthermore, it is alleged that the false registration was made through misleading statements and illegal procedures, which was also determined by DNA testing. The correction of such records made illegally through misleading statements constitutes a lawsuit for the correction of population records. Therefore, the dismissal of the case by the lower court was found improper.
CONCLUSION: For the reasons explained above, it was UNANIMOUSLY DECIDED on 26.01.2017 to REVERSE (BOZULMASINA) the judgment pursuant to Article 428 of the Code of Civil Procedure (HUMK).