Article 4 of the Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts stipulates that all cases arising from the issues regulated between Articles 118-395 of the Turkish Civil Code, except for the third part in the second book of the Turkish Civil Code No. 4721, shall be heard by the family court.
Since Article 122 of the TMK regarding the return of engagement gifts is included in the second book of the Turkish Civil Code, such cases must be heard and decided in the capacity of family court in the places where there is an independent family court, and in the places where there is no independent family court, in the Civil Courts of First Instance determined by the Supreme Board of Judges and Prosecutors.(Supreme Court of Appeal HGK dated 16.11.2005 and 2005/2-673 E. 2005/617 K.)
The duty is related to public order and should be taken into consideration by the court at every stage of the proceedings.
As such, the court should make a decision by considering that the case should be heard in the Family Court, and in places where there is no Family Court, in the Civil Court of First Instance as the Family Court, taking into account that the issue of jurisdiction is a rule of procedural law related to public order and should be considered ex officio even if it is not put forward by the parties, while continuing the proceedings in the capacity of the Civil Court of First Instance without considering the issue of jurisdiction as a result of the erroneous evaluation and making a judgement on the merits of the matter has been deemed contrary to the procedure and the law, and this issue has required a reversal.
According to the reason for the reversal, it is not necessary to examine the appellate objections of the defendant’s attorney for now.
CONCLUSION:
It is inappropriate to establish a judgement as written without taking into account the principles explained above, and since the appellate objections are appropriate for these reasons, it was unanimously decided on 19.03.2015 that the judgement shall be reversed in accordance with Article 428 of the Code of Civil Procedure and the prepaid appeal fee shall be refunded to the appellant upon request.
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