Return Of The Spouse To The Common Residence Cannot Be Considered As An Amnesty In Itself Under All Circumstances
2nd Civil Chamber 2021/3053 E. , 2021/4436 K.
“Case Law Text”
COURT : Bursa Regional Court of Justice 2nd Civil Chamber
TYPE OF CASE : Divorce
At the end of the hearing of the case between the parties, the judgement given by the civil chamber of the regional court of justice, the date and number of which is shown above, has been appealed by the plaintiff woman, the documents have been read and the necessity has been discussed and considered:
The divorce case filed by the plaintiff woman was decided to be dismissed, the plaintiff woman appealed against the decision, and the regional court of justice decided to dismiss it on the merits and the plaintiff woman appealed. The court stated that “The parties lived together in Erzincan before the case, the plaintiff woman left there due to incompatibility, came to Yalova and filed this divorce case, the parties reconciled during the case and the plaintiff returned to Erzincan to the joint residence with the defendant, they lived together for a month or two, it is necessary to accept that the mutual misconduct that occurred before the case at hand was forgiven by the parties, at least tolerated, and it is not possible to take into account in the fault determination.
In order to accept forgiveness or tolerance, it is not necessary for the parties to establish husband-wife relations in the dimension of sexuality, and according to the scope of the file, it is the plaintiff woman who avoids this. For this reason, it was decided to dismiss the case”; however, the fact that the plaintiff woman did not stay in the same room with the man despite returning home shows that this behaviour is in the nature of a reconciliation meeting and therefore cannot be accepted as forgiveness. Contrary to the reasoning of the court of first instance, the reason for the woman’s avoidance of sexual intercourse, the statement of the common children who were heard as witnesses, “Everything has not improved yet”, necessitated the acceptance that the woman did not forgive the man. In this case, the woman’s returning home cannot be considered as forgiveness in itself.
It is understood from the whole file that the defendant man did not want the woman to meet with her family and kicked her out of the house by taking the house key. In that case, according to the defective behaviours of the man, the man is completely defective in the events leading to divorce. There is no doubt that the marriage union has been shaken from its foundations to the extent that its continuation cannot be expected from the spouses.
When the events reflected in the file are evaluated as a whole, there is an incompatibility between the parties to the extent that shakes the common life from its foundations and does not allow the continuation of the union, and considering that the conditions for divorce in Article 166/1 of the TMK have occurred, the rejection of the plaintiff woman’s lawsuit should be accepted, while it should be accepted, is not correct and required a reversal.
CONCLUSION:
It has been decided unanimously that the appealed decision of the regional court of appeal is REVERSED, the decision of the first instance court is REVERSED for the reason shown above, the other appellate objections are not examined for the time being according to the reason for reversal, the pre-appeal fee is returned to the depositor upon request, the file is sent to the first instance court, a copy of the decision is sent to the relevant regional court of appeal law department. 03.06.2021 (Mon.)
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