Grounds For Divorce Indicating Adultery
2nd Civil Chamber 2014/20635 E. , 2015/9686 K.
“Case Law Text”
COURT :Family Court
TYPE OF CASE : Mutual Divorce
At the end of the hearing of the “divorce” and “counter-divorce” case between the parties, the judgement given by the local court, dated and numbered above, was appealed by the parties and the appeal examination was requested to be made with a hearing; on 11.05.2015, the day set for the hearing, the plaintiff-counter-defendant … and the defendant-counter-defendant … and their attorneys Av. … came. After listening to the speeches of those who came, it was deemed appropriate to leave the matter after the hearing to be examined and decided. Today, all the papers in the file were read and the necessity was discussed and considered:
The defendant-counterclaimant husband filed a counterclaim for divorce together with the reply petition. In the evidence section of the reply and counterclaim petition, nine witnesses were named. In addition, in the second reply petition filed after the service of the plaintiff-counter-defendant’s reply petition to the reply petition, the plaintiff-counter-defendant included five more witness names, stating that they were related to the proof of the issues raised in the reply petition to the counterclaim. Evidence is shown for the proof of contentious issues. The contentious issues are determined at the preliminary examination hearing. (CCP.art.140/1) The parties cannot be expected to present evidence until the issues on which they agree and disagree are determined. Accordingly, the parties may, as a rule, present and submit evidence until the beginning of the investigation at the latest. The court held a preliminary examination hearing on 31.01.2013 in the presence of the parties, and after the issues on which the parties could not agree were determined at the preliminary examination hearing, it was decided to hold the investigation hearing on 02.04.2013. With the interim decisions dated 18.07.2013 and 20.02.2014, it was decided that “the witnesses whose names the defendant-counterclaimant husband reported in the second reply petition dated 22.11.2012 submitted to the court before the preliminary examination shall not be heard. Even if they were heard, their statements should not be taken as a basis for the judgement” and the defendant-counterclaimant’s objections against these interim decisions were rejected and the statements of these witnesses were not taken into consideration. Considering that the contentious issues can be determined at the preliminary examination hearing and that the parties can freely change and expand their claims and defences until the preliminary examination stage, the statements of the witnesses, which are among the evidence submitted by the defendant at the stage of exchange of petitions before the preliminary examination stage, should be evaluated together with other evidence and a decision should be made according to the outcome. It was not correct to make a judgement with incomplete examination without taking this issue into consideration.
CONCLUSION:
The judgement appealed is DISMISSED for the reason shown above, the attorney fee of 1.100.00 TL for the hearing is taken from … and given to … and the attorney fee of 1.100.00 TL for the hearing is given to …. 00 TL attorney fee for the hearing to be taken from … and given to …, according to the reason for the reversal, since it has become compulsory to re-establish a new judgement in terms of the divorce requests of both parties and its accessories, it is not necessary to examine the other aspects of the requests, the advance fee for the appeal shall be returned to the depositor upon request, the way of correction of the decision shall be open within 15 days from the notification of this decision, and it was unanimously decided unanimously as a result of the majority of votes. 11.05.2015 (Mon.)
DISSENTING OPINION
The divorce lawsuit filed by the plaintiff (woman) is based on Article 166/1 of the Turkish Civil Code, and the counter divorce lawsuit filed by the defendant is based on the ground of “adultery” (Article 161 of the Turkish Civil Code), and if this is not accepted, on the ground of “shaking the marriage union from its foundations” (Article 166/1 of the Turkish Civil Code).
Failure to accept the evidence relied upon by one of the parties to prove their case without a legal reason is a ground for reversal (Art. 428/6 of the Code of Civil Procedure). However, the court has not accepted the evidence of the witnesses shown by the defendant-counterclaimant’s attorney in his petition dated 22.11.2012. 2012 dated 22.11.2012 were not evaluated and not taken as a basis for the judgement on the grounds that “there is a second witness list”; however, it was accepted that the plaintiff-cross-defendant (wife) went on holiday with her aunt’s son Ufuk in September 2012, they stayed in the same hotel, when they learned that the husband was going to come to the hotel where they were staying, both of them left the hotel the next day, and that this person came to the joint residence of the parties a few times when the husband was not at home, stayed overnight and left the house early in the morning. Indeed, this matter has been proved by the statements of the witnesses that the defendant-counterclaimant (the plaintiff) showed in his petition dated 25.9.2012 regarding the reply and counter petition for divorce and other evidence shown in the same petition. In this case, the evaluation of the witness statements, which the defendant-counterclaimant showed in his petition dated 22.11.2012 “in order to prove that the allegations put forward by the other party about him in the reply petition are not true” and the court said “I do not take their statements as a basis for the judgement since there is a second witness list”, will not have any effect on the result. In order for a procedural error or deficiency to constitute a reason for reversal, it must have a modifying effect on the judgement. If the procedural deficiency or error does not affect the judgement, it cannot be a ground for reversal (Art. 428/son of the Code of Civil Procedure). In this respect, we cannot agree with the opinion of the majority that “the witness statements submitted by the defendant-counterclaimant’s attorney in his petition dated 22.11.2012 should be evaluated together with the other evidence”.
Since the counterclaim for divorce filed by the defendant-counterclaimant is primarily based on the ground of “adultery” (Art. 161 of the Civil Code), and if this is not accepted, on the ground of “shaking the marriage union from its foundations” (Art. 166/1 of the Civil Code); the problem is whether the action of the plaintiff-counterclaimant (woman) should be accepted as “adultery”. The Court has considered this act of the woman as “behaviour and attitude that undermines trust”. However, a married woman going on holiday with a thirty year old man, even if he is the son of her aunt, staying in the same hotel and taking this person into the joint residence several times at night when her husband is not at home is evidence of adultery. In the face of the evidence in the file, the adultery of the woman has taken place. Therefore, while the counter divorce case should be accepted due to “adultery” (Art. 161 of the Turkish Civil Code), it was not correct to give a divorce decision based on Article 166/1 of the Turkish Civil Code as a result of a mistake in the evaluation. The judgement should be reversed for this reason, and according to the reason for reversal, it should be decided that the appellate objections of the husband regarding the claim for moral damages and the appellate objections of the plaintiff-cross-defendant (wife) should not be examined at this stage. For the reason explained, although we agree with the reversal decision of the majority in terms of its result, we do not agree with its reasoning.
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