Interfering With Spouse’s Clothing Style Is A Ground For Divorce
2nd Civil Chamber 2020/1135 E. , 2020/2210 K.
“Case Law Text”
COURT : Istanbul Regional Court of Justice 38th Civil Chamber
TYPE OF CASE : Divorce
At the end of the trial 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, was appealed by the plaintiff man in terms of all of them, the documents were read and discussed:
At the end of the trial held by the court of first instance; by accepting the case of the plaintiff man by accepting that the woman was fully defective, it was decided that the parties were divorced and its accessories in accordance with Article 166/1 of the TMK, and the defendant woman applied to the legal remedy of appeal against this decision made by the court of first instance in terms of all of them.
As a result of the examination made on the file by the regional court of appeal; “the plaintiff man did not clearly and duly rely on the fact that “his wife applied social violence by interfering with the way she dressed, the meetings she would go to and the people she would meet”, which was attributed to the woman from the evidence collected by the first instance court. In the petition for the lawsuit, the plaintiff man claimed that the marriage union had become unbearable due to the fact that the woman had a dominant character, constantly exhibited quarrelsome behaviour, insulted his wife and kicked her out of the house, and did not take care of the house, children and his wife, and did not rely on any other fact.
The court cannot decide on the basis of facts that are not duly asserted and not determined in a contentious manner (CCP Art. 137, 140/3, 187) (CCP Art. 141). In this respect, it is not possible to attribute a fact that is not relied upon to the defendant as a defect on the grounds that it is mentioned in the witness statements”, and the case should be dismissed, but its acceptance was found erroneous, and it was decided to accept the appeal request of the defendant woman, to annul the decision of the first instance court, and to dismiss the man’s case, and this decision of the regional court of appeal was appealed by the plaintiff man.
Article 141 of the Code of Civil Procedure titled “Expansion or amendment of claim and defence” reads as follows: “(1) The parties may expand or amend their claims and defences freely with their reply and second reply petitions; at the preliminary examination stage, they may expand or amend their claims and defences only with the express consent of the other party.
If one of the parties fails to appear at the preliminary examination hearing without an excuse, the party who appears may expand or amend his/her claim or defence without seeking his/her consent. After the completion of the preliminary examination stage, the claim or defence may not be extended or amended. (2) The provisions on amendment of pleading and the express consent of the other party are reserved for the extension and amendment of the claim and defence.” As stated in the preamble of the aforementioned article, it has been accepted that the parties may change their claims and defences within the general framework of the dispute without any limitation at the stage where the parties submit their mutual petitions.
Undoubtedly, this possibility is only valid for the reply to the reply and the second reply petition, and the petitions to be submitted after the two petitions, under whatever name, should be accepted within the scope of limitation and prohibition. At the preliminary examination stage, it is accepted to extend or change the claims or defences only with the express consent of the other party (or if one of the parties does not attend the preliminary examination hearing without an excuse) (Decree of the Court of Cassation General Assembly of Civil Chambers dated 20.04.2016, numbered 2014/2-695 main and 2016/522 decision).
In the concrete case; in the petition of the plaintiff man, the fact that “as a dominant character, he constantly tries to dictate what he says” was stated in the petition of the lawsuit, and the defendant woman did not attend the preliminary examination hearing, which was duly notified, without an excuse, and in this preliminary examination hearing, the man relied on the facts that “she did not take care of the children and the house”.
In the face of this situation, since the facts determined by the first instance court that the wife applied social violence by interfering with the way she dressed, the meetings she would go to and the people she would meet, and that she “did not take care of her home, children and husband” can be taken as a basis for the judgement, the decision of the relevant district court of appeal to dismiss the plaintiff man’s lawsuit is contrary to the procedure and the law and requires reversal.
CONCLUSION:
It was unanimously decided that the appealed judgement be DISMISSED for the reason shown above, the pre-appeal fee be returned to the depositor upon request, and the file be sent to the relevant district court of appeal law department. 16.03.2020 (Mon.)
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