SUMMARY: After the divorce case is finalized and finalized, moral compensation can be requested based on the events that constitute the reason for divorce. The case regarding this request, which is separate from the divorce, should be heard at the Civil Court of First Instance.

Y. 2. HD E:2018/7150 K:2018/14762 T:18/12/2018

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 appellate objections of the plaintiff man to the rejection of the claim for pecuniary compensation are unwarranted.

2- The court decided to dismiss the lawsuit procedurally due to “final judgment”. In order to speak of a final judgment; the result desired to be obtained with the lawsuit, the facts relied on in the lawsuit and the parties of the lawsuit must be the same. The divorce case previously filed by the defendant woman on 12.11.2012 was accepted and the parties were granted a divorce, and the decision became final on 23.12.2015. The divorce case subject to this appeal was filed on 28.01.2014 before the finalization of the judgment given in the previous divorce case. Since the plaintiff man claimed that the defendant woman had an affair with another man after the filing date of the previous case and relied on this new event, the final judgment can no longer be mentioned. Therefore, it is not correct to dismiss the case procedurally due to final judgment. Since the divorce judgment given in the previous divorce case became final on 23.12.2015, the divorce case filed by the man has become irrelevant. For this reason, it is necessary for the court to revoke the judgment in order to make a ruling that “there is no need to make a decision” since the divorce case filed by the plaintiff man has become irrelevant and to decide on the trial expenses and attorney fee according to the rightfulness of the case.

3-If the events leading to the divorce are in the nature of an attack on the personal rights of the party with no fault or the party with less fault, it requires non-pecuniary damages (Article 174/2 of the TCC). It was decided to divorce the parties for the reason stated in Article 166/1 of the Turkish Civil Code and the divorce decision was finalized on 23.12.2015. The party whose personal rights are damaged due to the material event, which is accepted as a reason for divorce and constitutes an attack on the personal rights of the other spouse, may request non-pecuniary damages with the divorce case or after the divorce. Or he/she may demand it according to the general provisions within the framework of “competition of rights” without being bound to divorce. If a person's liability can be based on more than one cause, the judge may decide according to the cause of liability that provides the best remedy to the injured party, unless the injured party requests otherwise or unless otherwise stipulated by law. (Art. 60 of the TCO No. 6098) The plaintiff requested non-pecuniary damages together with the divorce case based on Article 166/1 of the Turkish Civil Code. In the face of the finalization of the divorce decision given in the previous case, the claimant's request for non-pecuniary damages based on the act that also constitutes a reason for divorce is no longer dependent on the reason for divorce and has become an independent request. In such a case, the legal basis of the claim for non-pecuniary damages is now based on Article 174/2 of the Turkish Civil Code. article of the Turkish Civil Code. Since the plaintiff man claims non-pecuniary damages based on the allegation that the defendant woman had an affair with another man, if the defendant cannot be held liable for this unlawful act according to Article 174/2 of the Turkish Civil Code, he may be held liable according to the general provisions. The Code of Obligations is the 5th book of the Turkish Civil Code and is complementary to it (Art. 544 of the TPC; Art. 646 of the TCO No. 1098). Therefore, if the plaintiff's request for non-pecuniary damages cannot be examined according to the provisions of “Family Law”, it can be examined within the framework of the general provisions on tort liability. Therefore, it was not deemed correct to render a written judgment in the written manner, while the file should be sent to the Civil Court of First Instance by deciding on the lack of jurisdiction in the event that the relative advance fee deficiency is completed in terms of the plaintiff's request for non-pecuniary damages, which has become independent from the reason for divorce.

CONCLUSION

It was unanimously decided that the appealed judgment shall be DISMISSED for the reasons shown in subparagraphs 2 and 3 above, and the appellate objections outside the scope of the reversal shall be APPROVED for the reason shown in subparagraph l above, the advance appeal fee shall be returned to the depositor upon request, and the way of correction of the decision shall be open within 15 days from the notification of this decision.