No Fault Can Be Attributed To The Plaintiff Woman Considering The Claims And Defenses Of The Defendant Party Who Did Not Notify The Evidence By Not Filing A Reply Petition In Due Time
“Case Law Text”
COURT :Family Court
TYPE OF CASE : Divorce
At the end of the trial of the case between the parties, the judgment given by the local court, dated and numbered above, was appealed by the plaintiff woman regarding the determination of fault, rejection of compensation claims, the amount of poverty alimony, and the custody of the joint children…. and…., the documents were read and discussed:
1- According to the writings in the file, the evidence on which the decision is based, the reasons in accordance with the law and especially the appreciation of the evidence, the appeals of the plaintiff other than the scope of the following subparagraphs are unwarranted.
2- It is understood from the scope of the file that the defendant man did not submit a response petition against the lawsuit, the plaintiff woman claimed that she did not fulfill her duties of unity during the investigation phase, the court concluded that the parties who did not fulfill their responsibilities were equally at fault in the events that caused the divorce, and the divorce of the parties with the acceptance of the case, poverty alimony was ruled in favor of the woman, the custody was given to the defendant man, and it was decided to reject the compensation demands of the woman.
Article 141 of the Code of Civil Procedure titled “Expansion or amendment of claim and defense” reads as follows: “(1) The parties may expand or amend their claims or defenses freely with their reply and second reply petitions; at the preliminary examination stage, they may expand or amend their claims or defenses only with the express consent of the other party. If one of the parties does not appear at the preliminary examination hearing without an excuse, the party who appears may expand or amend his/her claim or defense without seeking his/her consent. After the completion of the preliminary examination stage, the claim or defense 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 defense.”
As stated in the preamble of the aforementioned article; it is accepted that the parties may change their claims and defenses within the general framework of the dispute without any limitation at the stage where they submit their mutual petitions. …. Undoubtedly, this possibility is only available for the reply to the reply and the second reply petition. The petitions to be filed after the two petitions, under any name whatsoever, should be accepted within the scope of the limitation and prohibition. At the preliminary examination stage, it is accepted to expand or change the claims or defenses only with the express consent of the other party (or if one of the parties does not come to the preliminary examination hearing without an excuse). (Judgment of the YARGITAY General Assembly of Civil Chambers dated 20.04.2016, numbered 2014/2-695 Esas 2016/522 decision) In this case; since the defendant did not file a reply petition within the time limit after the petition was duly served to the defendant on 14.07.2014, it should be accepted that it is not legally possible for the local court to give the defendant time to show evidence, since there is no evidence (Art. 129/1-e of the CCP) put forward in due time as the basis of the defense.
As such, it was not deemed correct to attribute fault to the plaintiff woman by taking into account the claims and defenses of the defendant, who did not file a reply petition in due time and did not submit his evidence. In the face of this situation, the defendant man, who did not fulfill his duties of unity in the events that caused the divorce, who had alcohol and gambling habits, who insulted his wife and his wife’s family, is fully defective and the conditions of Article 174/1-2 of the Turkish Civil Code have occurred in favor of the plaintiff woman. While this is the case, the court’s acceptance of the parties as equally at fault and the rejection of the plaintiff woman’s material and moral compensation claims based on this erroneous fault determination was not correct and required a reversal.
3- According to the actual social and economic situation of the parties, the nature of the alimony, and the economic conditions of the day, the poverty alimony awarded for the plaintiff woman is low. The court should award a more appropriate amount of alimony by taking into account the principle of equity in Article 4 of the Turkish Civil Code. It is contrary to the procedure and the law to make a written judgment without considering this aspect.
CONCLUSION: It was unanimously decided that the appealed judgment be DISMISSED for the reasons shown in paragraphs 2 and 3 above, and the other parts subject to the appeal, which are not within the scope of the reversal, be APPROVED for the reason shown in paragraph 1 above, and that the pre-appeal fee be returned to the depositor if requested, and that the way of correction of the decision be open within 15 days from the notification of this decision.20.06.2016(Mon.)