SHERIFE SAMI ν. ARIF HIKMET DIRDIR (V21) 1 CLR 184 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup
- on)- Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V21) 1 CLR 184 1956 October 26 [HALLiNAN, C. J. and ZEKIA, J.] SHERIFE SAMI of Polis, Appellant, v. ARIF HIKMET DIRDIR of Limassol, Respondent. (Turkish Family Court Appeal No. 1/56) Turkish Family Law-Divorce-Adultery-Ill-treatment-Connubial life so strained as to make life of spouses impossible-Adjudication on more serious matrimonial offence-Maintenance for wife and child-Compensation and maintenance-Turkish Family (Marriage and Divorce) Law, 1951, sec. 25 (f), 31 and 33. The plaintiff sued his wife in the Turkish Family Court for divorce and his wife counter-claimed for divorce on three grounds: adultery, ill-treatment, and (under section 25 (
- f)of the Turkish Family (Marriage & Divorce) Law, 1951), that connubial life was so strained that their life together was impossible. The plaintiff's case failed. On the counter-claim, the evidence of adultery was not strong but there was considerable evidence of brutal ill-treatment of the wife by the husband. The trial Court granted the wife a divorce on the third ground, i.e. under para. (
- f)of section 25. The husband was not owner of any substantial movable or immovable property but he received £45 salary. He married the defendant when she was 16. She had lived with him for 10 years and born him a child now in her care. Under sec. 31 of the Law of 1951, the trial Court awarded the defendant £50 compensation and £5 a month maintenance which under sec. 31 can only last one year. Upon appeal by the defendant, the Supreme Court, Held:
(1)When a claim for divorce is based on several grounds the Court should adjudicate on the more serious matrimonial offences alleged, before the less serious. In the present case divorce should have been granted on the ground of ill-treatment rather than under section 25 (f).
(2)On granting a divorce the Turkish Family Court may order maintenance for the wife and child under sec. 33 of the Law of
- In the circumstances of the present case the husband's lack of property on the one hand and his considerable income on the other make the award of maintenance under section 33 more appropriate than under section
- Maintenance of £10 monthly for the wife and £5 monthly for the child awarded in lieu of compensation and maintenance granted by the trial Court. Appeal by defendant from the judgment of the Turkish Family Court of Limassol (Action No. 66/55). Sh. Ilkay for the appellant. R. MalyaIi for the respondent. The facts sufficiently appear in the judgment of this Court which was delivered by: HALLINAN, C. J.: In this case the husband who was the claimant sued for divorce on the ground that the life between himself and his spouse had become so seriously strained as to make their life together impossible. This is a ground of divorce under sec. 25 of the Turkish Family (Marriage and Divorce) Law,
- The wife, who is the appellant in this Court, in her answer counterclaimed for a divorce on these grounds: On the ground of adultery, on that of ill-treatment and on the same ground on which the husband had based his claim. The trial judge dismissed the husband's claim and found that due to his fault the relations of the parties had become so strained so as to make their life impossible or intolerable. He granted the divorce claimed by the wife on this latter ground and under section 31 of the Turkish Family (Marriage and Divorce) Law, 1951, he awarded the wife £150 compensation and ordered that the husband pay £5 monthly as a maintenance to the wife; under section 31 (b) this maintenance is to last for one year. The judge also ordered the husband to pay £3 monthly as maintenance for the child whose custody he awarded to the wife. The husband is restrained from marrying again for one year after the divorce. Against this decision the wife has appealed on two grounds: First, that on the evidence and on the facts found by the trial judge he should have given her a divorce on the ground of adultry and, if not, on that of ill-treatment; and, secondly, that the amount awarded for compensation and for maintenance are inadequate. We accept the submission of counsel for the appellant that where a divorce is asked for on several grounds, some being more serious matrimonial offences than the others, a trial Court should adjudicate on the more serious offences which are alleged to have been committed before making a decision on the less serious. In the present case the evidence of adultery was not so strong that on appeal we could hold that the trial judge should find for the wife on that ground; but, in our opinion, both on the evidence and on the findings of the trial judge he should have granted a divorce on the grounds of ill-treatment of the wife by the husband under section 25, para. (f). As regards the awards of the compensation and maintenance, no doubt, when considering compensation (which is a form of damages) the conduct of the guilty party must be taken into consideration as well as his pecuniary position or expectations and the social standing of the parties. It is not easy where the conduct of the guilty party has been particularly reprehensible, as it has been in the present case, to award an adequate sum as compensation for he is not the owner of any valuable movable or immovable property but depends on his salary as a school teacher. In this case the wife was a girl of 16 when she married; she had born a child and she lived with her husband for 10 years until she was driven from her house by brutal ill-treatment. It is not in accordance with modern ideas of social justice and the performance by a husband of his marital obligations that the husband (who is earning £540 a year) should be discharged from the duty to support his wife and to compensate her for the injury he did to her by paying £210 i.e. £150 by way of compensation and £60 maintenance for one year. It seems, therefore, more appropriate in the circumstances of this case where the guilty party is not the owner of any substantial movable or immovable property but is in receipt of a salary of £45 a month that a substantial sum should be awarded as maintenance for the wife and child under section 33 of the Turkish Family (Marriage and Divorce) Law, 1951, as amended by Law 63 of
- An order under that section is not limited to any period and can be reviewed later on according as to whether the financial position of the guilty party becomes better or worse and according to all the other circumstances of the case. On the other hand, in our view, it would not be correct to give to a wife compensation under sec. 31 and maintenance under sec. 33; if she receives compensation under sec. 31 then it is reasonable to assume that the Legislative Authority intended that maintenance should be confined to one year as provided in sec.
- For these reasons we vary the order of the trial Court by setting aside the order for compensation and maintenance under section 31 and by ordering that the husband pay as maintenance under section 33 to the wife a sum of £10 a month, and, in respect of the child, of £5 a month. The appellant is entitled to her costs both here and below. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο