Fault Of A Husband Who Violates His Wife
T.C.
JUDICIARY
GENERAL ASSEMBLY OF LAW
E. 2012/2-527 K. 2012/767 T. 7.11.2012
CASE : At the end of the trial held due to the “divorce, pecuniary, non-pecuniary compensation and alimony” cases between the parties; Upon the request of the defendant-counterclaimant’s attorney for examination of the decision dated 01.10.2009 and numbered 2008/726 E., 2009/819 K., which was given by İzmir 13th Family Court for the acceptance of the divorce case and partial acceptance of the alimony case, with the reversal decision of the 2nd Civil Chamber of the Court of Cassation dated 16.05.2011 and numbered 2010/7774 E., 2011/8480 K;
( … 1- Based on the writings in the case, the evidence on which the decision is based and the legal reasons and especially the events that caused the divorce, the plaintiff-cross-defendant husband, who inflicted violence on his wife, insulted her, said “let’s abort the child, I don’t want a child from you” and avoided living together by saying “take your daughter away” to his wife’s relatives, is more severely negligent than the defendant-cross-defendant wife who inflicted violence and insulted her husband; For this reason, although the court’s acceptance of equal fault is not accurate, the husband’s divorce case was accepted in accordance with Article 166/2 of the Turkish Civil Code. article 166/2 of the Turkish Civil Code, the divorce decision given due to the acceptance of the husband’s divorce case is correct as a result for the above reason, the woman’s appellate objections regarding this aspect and the appellate objections other than the scope of the following subparagraphs are found to be unjustified.
2- Article 174/1 of the Turkish Civil Code stipulates that the faultless or less faulted party whose existing or expected interest is prejudiced due to divorce may request an appropriate financial compensation from the faulted party, and Article 186 stipulates that the spouses will choose the house together and participate in the expenses of the union with their labor and assets in proportion to their power. From the collected evidence, it is understood that the spouse requesting financial compensation is not more and equally at fault than the other spouse in the events that led to the divorce. As a result of the divorce, this spouse has at least lost the financial support of the other spouse. Therefore, the court should award an appropriate amount of financial compensation in favor of the defendant-counterclaimant woman, taking into account the social and economic status of the parties, their faults and the principle of equity (Art. 4 TCC, Art. 42 and 44 BK). It has not been deemed correct not to take this aspect into consideration.
3-Article 174/2 of the Turkish Civil Code stipulates that the party whose personal rights have been attacked due to the events that caused the divorce may claim moral compensation from the party at fault. From the collected evidence, it is understood that the defendant-counterclaimant woman who seeks compensation for the events that caused the marriage union to be shaken from its foundations is not heavily or equally at fault, and that these events constitute an attack on personal rights. In that case, the court should award an appropriate amount of non-pecuniary damages in favor of the defendant-counterclaimant woman, taking into account the social and economic status of the parties, the gravity of the act that is the basis of compensation and the rules of equity (TMK. Art. 4 BK. Art. 42.43.43.44.49). It has not been deemed correct not to take this aspect into consideration…),
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
The decision of the General Assembly of Civil Chambers was examined and after it was understood that the decision of resistance was appealed in due time and after the papers in the file were read, the necessity was discussed:
DECISION : According to the mutual claims and defenses of the parties, the minutes and evidence in the file, and the reasons explained in the reversal decision, it is against the procedure and the law to resist the previous decision, while the Special Chamber reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with. Therefore, the decision of resistance should be reversed.
CONCLUSION : The appeal objections of the defendant-counterclaimant’s attorney are accepted and the decision of resisting is reversed for the reasons explained in the reversal decision of the Special Chamber, in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied with the reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100 with Article 30 of the Law No. 6217. It was decided unanimously on 07.11.2012, in accordance with Article 440/1 of the same Law, that the way of correction of the decision shall be open within 15 days as of the notification, to return the pre-appeal fee to the depositor, if requested.