Image source: https://www.wikihow.com/Write-an-Affidavit

This article is written by Kishita Gupta, a graduate of the Unitedworld School of Law, Karnavati University, Gandhinagar. It discusses what an affidavit is, its importance, and various other aspects related to an affidavit.

This article has been published by Sneha Mahawar.

Introduction

Each and every person in their life must have come across the term ‘affidavit’ but not all of them are aware of what it actually means and how it is used. This is why it becomes even more important to understand what it really means and what its uses are. In this article, the author will be dealing with all the aspects that are related to the term ‘affidavit.’ To begin with, let’s understand the meaning and some aspects of an affidavit. 

Download Now

What is an affidavit

As per Merriam Webster, the term ‘affidavit’ stands for a sworn statement which is made in writing and necessarily under an oath or affirmation before an authorised officer or magistrate.

A written promise is referred to as an affidavit, and according to its Latin roots, it is related to another type of promise in English. An affidavit, which means “he or she has made a commitment” in Latin, is derived from the past tense of the verb affidare, which means “to pledge.”

Affidavits can also be thought of as a form of written court testimony. In a court of law, you are required to swear that you are telling the truth and take an oath on a holy book. In an affidavit, you do the same thing verbally. Although your testimony is on paper, you are sworn in. They are essential because, without them, an affidavit can be used in place of the oral submission, testimony, or evidence that can only be admitted in court.

If the promise turns out to be untrue, then the maker has to face prosecution. When a person cannot testify in person, affidavits are usually used in court. To get a search warrant, police officers typically need to file an affidavit with a court. Affidavits are typically made without the presence of opposing counsel and without the opportunity for questioning (unlike comparable signed declarations known as depositions).

In simpler words, it can be said that ‘a written declaration signed by a person who implements, swears, verifies, and affirms under oath’ is known as an affidavit. Additionally, this individual declares that nothing has been omitted or misrepresented and that the proclamation’s contents are truthful and accurate. He also attests to the document’s veracity.

An affidavit is a legally binding declaration of a person’s oath that cannot be refuted. Affidavits are a crucial component of court proceedings since they offer a written description of the facts surrounding the incident, which can facilitate judges’ decision-making. They are useful for keeping records as well.

In India, the provisions of the Code of Civil Procedure, 1908, on the subject of affidavits, are contained in Section 139 and Order XIX of the Code.

Essential features of an affidavit

The following are the essential features of an affidavit:

  1. An affidavit must be in writing.
  2. It needs to be a declaration by the deponent.
  3. The facts mentioned in an affidavit must be true to the best knowledge of the deponent.
  4. In order to make it valid, it needs to be sworn in under oath before an authorised officer or magistrate.
  5. An affidavit is never made on behalf of some other person.

When are affidavits used

Affidavits are used when there is a need to take an oath of any kind. Some common uses of affidavits are as follows:

  1. Divorce cases,
  2. Property disputes,
  3. Disputes about debt,
  4. Confirmation of received legal documents,
  5. Name change verification,
  6. Residential address verification,
  7. Firstborn child certificate,
  8. Marriage registration.

Who is authorised to draft an affidavit

Affidavits can be drafted by anyone. However, one has to fulfil some basic requirements in order to write an affidavit, such as an individual must be of legal age and fully understand the nature of the components. In other words, the person must not be insane or rendered unconscious for failing to understand the significance of the claims made in the affidavit.

An affidavit that claims to have been made by a female declarant who has appeared before the court, magistrate, or other officers in question while wearing a veil is not valid until she has been properly identified and an affidavit confirming that identity has been made by the person identifying her and certified by the court, magistrate, or other officers.

Types of affidavits

There are two types of affidavits. These are as follows:

Judicial affidavit

Judicial affidavits are written on judicial paper and properly stamped with court fees. The judicial affidavits must be submitted for a variety of reasons, including but not limited to serving as proof or as application support. A judicial affidavit needs the Oath Commissioner’s attestation to be considered valid.

Non-judicial 

Affidavits that are not legally binding are written on non-judicial stamp paper. States have different stamp paper values. In most cases, it is at least Rs. 10/-. The non-judicial affidavits are typically used in administrative or business contexts. The affidavit needs to be attested by a Notary Public with a valid licence in order to be considered valid. The attestation must be signed by the notary with both his seal and a notary stamp, and it ‘shall be entered in the Notarial Registration Book.’

Commonly used affidavits in India

Name change affidavit 

The first kind of affidavit is for a name change. It is a declaration made under oath by a person who swears to use their real name on any document, not a misspelling or a variation of it. This kind of affidavit may be introduced in front of a magistrate or a notary. Some affidavit instances are generic name changes or name changes following marriage. The following stage requires you to promptly publish the name change in two local newspapers after the affidavit has been notarized.

  • One ad should appear in a daily news publication in the state’s official local language.
  • A local English newspaper should print the second classified.

Identity theft affidavit

An identity theft affidavit is a document used by a person to prove that their identity was misused by someone else by using their personal information to commit any fraudulent activity. It is common in cases of bank account fraud.

Affidavit of a lost document

An affidavit of a lost document is a declaration made when someone loses an important document of theirs or if, for whatever reason, it gets destroyed. To protect the holder or replace the certificate, the security issuer needs an affidavit. The lost document can be anything, such as a passport, a mark sheet, a government ID, etc.

Affidavit of power of attorney

A power of attorney is basically your attorney – in – fact, or in simpler words, your agent, who you entrust to act on your behalf on any legal matter for which you allow him to do so. When acting on your behalf with another party, your agent is frequently asked to provide proof of power of attorney. To accomplish this, it is typical to request an affidavit of power of attorney from the agent. The agent certifies in the affidavit that he is your agent and that you granted him power of attorney, which you have not revoked. Along with the affidavit, the agent often encloses a copy of the power of attorney.

Joint affidavit for registration of marriage

In India, a marriage cannot exist in law unless it is registered. The bride and groom receive a marriage certificate at the conclusion of the marriage registration process. This kind of affidavit is a declaration made by a husband and wife after their wedding that includes the date, place, and legal system in which the union was registered. The full names and addresses of both parties’ parents should be listed in the joint affidavit.

Both individual and joint affidavits may be presented in accordance with the two primary marriage registration Acts in India, i.e., the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The option you make would be governed by state law. You need a common set of documents to register for any type of event. It is as follows: 

  • The application form for registration,
  • Address proof,
  • Valid Identity proof,
  • Proof of date of birth,
  • Two passport-sized photos of the bride and the groom,
  • The death certificate of a previous spouse if either party is widowed,
  • Divorce decree if either party was married before.

First born child affidavit

The first born child affidavit is a document that parents are obliged to present to a school or nursery in which they are seeking admission for their child. It is frequently needed during school and nursery admissions. Like with other affidavits, the process is quite simple. The document calls for one or both parents to serve as ‘deponent(s)’ and declare that the ward at issue is in fact their firstborn child and that they are authoring it in order to get the ward into a specific educational facility. To complete this, one might go to any notary in their area. The document is deemed to be valid and enforceable once the notary seals it.

Affidavit of debt

An affidavit of debt is a declaration from an employee of the plaintiff (typically the collection agency) stating that they are aware of the methods of record keeping at the original creditor regarding debt. This also means whenever a certification is required regarding the truthfulness of the information, they can do so. 

Affidavit for no criminal offense

When someone is awarded a responsible position in government authority or when they participate in elections, they must submit an affidavit stating that they have committed no criminal offence. Additionally, many reputable businesses need this affidavit as part of their hiring procedures when hiring new staff.

Who attests an affidavit

The Court, Magistrate, or other officer mentioned above before whom an affidavit is made must certify that the affidavit was made before him. After that, one of the above-mentioned people shall enter the date and sign the certificate, and lastly, mark each exhibit referred to in the affidavit for identification purposes. The verifying authority’s name must be fully signed, and special attention must be given to ensuring that his correct identification as a Civil Court or Magistrate is appended.

Non-judicial affidavit

A non-judicial affidavit can be attested by the following persons: 

Attestation of affidavits by process servers and other officials

The State Government has authorised the Court of the Subordinate Judge of the First Class in charge of the Nazarat to appoint an officer subordinate to itself to administer oaths to process-servers, bailiffs, naib-nazirs, and nazirs making affidavits of service of summons, notices, and other processes under Order V, Rule 19, or Order XVI, Rule 10 of the Code of Civil Procedure in order to facilitate the verification of affidavits of serving officers. 

Identification of the deponent

If the court, magistrate, or other officer appointed to administer the oath or affirmation is not personally acquainted with the person making the affidavit, the person must be identified to the court, magistrate, or officer by a person who is acquainted with him. The court, magistrate, or officer shall specify the name and description of the person by whom the identification is made, as well as the time and location of the identification and the making of the affidavit at the foot of the affidavit.

Attesting officer’s duty

There are instances where a person who submits an affidavit appears to the court, magistrate, or other official administering the oath or affirmation to be illiterate, unaware of the language used to write it, or unable to fully comprehend its contents. In this case, the court, magistrate, or officer must have the affidavit read to him and explained to him in a language that they all understand, either by doing it themselves or by having someone else do it for them while they are both present. When an affidavit is read and explained in accordance with the provisions of this clause, the court, magistrate, or another officer as applicable, shall certify in writing at the foot of the affidavit that this has occurred and that the declarant appeared to understand it completely at the time it was made.

Attestation and verification of affidavits

Every affidavit must have the deponent’s signature, marked, and verified at foot, as well as the attestation of the court, magistrate, or other official delivering the oath or affirmation. The deponent must sign and the attesting officer must initial each page of the affidavit. The deponent must sign or annotate the verification on one of the forms that are attached to this document.

Contents of an affidavit

  • Every affidavit comprising a statement of facts must be broken up into paragraphs, each of which must be numbered sequentially and, to the greatest extent possible, must be limited to a single area of the subject.
  • Any individual who submits an affidavit must be identified clearly by giving their full name, the name of their father, their profession or trade, and their place of residence unless they are a plaintiff or defendant in the lawsuit in which the affidavit is submitted.
  • The declarant must state immediately and positively, using the phrases “I affirm” or “I swear and say,” whenever he refers to facts that are in his knowledge.
  • When the specific fact is not known to the declarant but is stated based on information obtained from others, the declarant must use the phrase “I am informed” and, if applicable, should add “and verily believe it to be true.” Alternatively, he may specify the source from which he obtained the information. When the declaration is supported by documents or copies of documents obtained from a court of justice or another source, the declarant must identify the source and express his knowledge or belief regarding the accuracy of the facts contained in those documents.

Punishment for filing a false affidavit

Anyone who knowingly provides false testimony in any stage of a legal proceeding, or who creates false testimony with the intent to use it at any stage of a legal proceeding, shall be punished by imprisonment of either kind for a time that may not exceed seven years, as well as by a fine.

Anyone who knowingly provides or fabricates false evidence in any other circumstance faces a fine as well as a term of imprisonment of either kind that may last up to three years. Making a false affidavit in one’s pleadings or submitting a fake affidavit or false document in evidence before a court of law is a crime under sections 191, 193, 195, and 199 of the Indian Penal Code, 1860.

A criminal proceeding against the offending party may be started by filing an application under Section 340 read with Section 195 of the Code of Criminal Procedure 1973 before a criminal or civil court for providing false testimony.

A private complaint may be brought under Section 200 of the IPC before the appropriate magistrate when fraudulent affidavits or other false documentation are presented in any quasi-judicial or administrative action.

An application must be made in accordance with Section 340 read with Section 195 of the CrPC 1973, if any tribunal is designated as a court in the statute.

In the case of Ranjeet Singh v. State of Punjab (1959), the police officer defendant was required to respond to a writ of habeas corpus motion made under Article 226 of the Constitution, alleging that the defendant had wrongfully held a man in police custody. The accused made a fake affidavit in his written statement, claiming that the individual was never taken into custody or apprehended by the police.

Evidentiary value of affidavits

Affidavit evidence is not admissible unless the law specifically permits it. For example, real possession under Section 145(4) of the Criminal Procedure Code cannot be established with an affidavit. 

The Indian Evidence Act does not apply to affidavits presented to any court or officer. An affidavit is not evidence under the Indian Evidence Act, 1872. If a fact is allowed to be proved by an affidavit by the C.P.C., Cr.PC or any other law, it can be proved by affidavit notwithstanding the provision of the Indian Evidence Act vide the order Sheoraj v. A.P. Batra 1955. This case also noted that the affidavit is worthless if the deponent refuses to appear for cross-examination in response to a demand from the opposing party.

The Court in the case of Premlal v. Kunti Bai, 2019, believed that a close reading of Section 3 of the Indian Evidence Act, 1872, would demonstrate that the affidavit is not covered by the definition of ‘evidence’ and can only be used if the court grants permission for good cause. Only when an affidavit is filed in court or at the court’s request, or when the law specifically allows for the use of affidavits as proof of anything, can it be said to be ‘evidence’ within the meaning of Section 3 of the Code. Therefore, any court cannot consider the submission of an affidavit or one’s own declaration in one’s own favour. According to the High Court, it is now “clearly established that an affidavit is not ‘evidence’ within the meaning of Section 3 of the Evidence Act unless an opportunity is afforded to the opposite side as provided in Order 18 Rule 4(2) of the CPC to successfully cross-examine the person(s) interrogated.”

Additionally, Order XIX and Section 139 of the Code of Civil Procedure, 1908, as well as Order XI of the Supreme Court Rules, provide the legal requirements for affidavits. According to Order XIX of the Code of Civil Procedure, 1908, the court has the authority to order the affidavit proof of any specific fact or facts at any moment. However, if it appears to the court that either party wishes the production of a witness for cross-examination and that such a witness can be provided, the court shall not issue such an order.

The process of drafting an affidavit

  1. Write the name of the court or tribunal where the affidavit will be filed, along with the assigned case or suit number, at the top of the document.
  2. Briefly mention each party’s name.
  3. Mention “AFFIDAVIT” in bold and italics as the document’s heading or title.
  4. Then, after saying “Do solemnly swear and declare as under,” provide the deponent’s information (the person who is testifying as to the veracity of the claims he made in the main petition). This information includes the deponent’s name, the name of his father, his age, and his residential address.
  5. The deponent must declare that he or she is the plaintiff or defendant (as applicable) in the lawsuit for which the affidavit is being submitted in the first paragraph following the introduction and that he or she is fully aware of and conversant with the facts of the case and is qualified to testify regarding them.
  6. Mention in the second paragraph that the deponent’s attorney authored the petition or submission made in the petition and that the contents were read over in simple English with a comprehensive explanation given to the deponent, as well as the ramifications of the same.
  7. Briefly describe the details of the lawsuit or the deponent’s submission. If the information is included in the main petition, it is not necessary to repeat it in the affidavit; instead, one can state that “the contents of the petition are not being reproduced here for the sake of brevity and one shall treat the same as a part of this affidavit.”
  8. Finally, add a sentence that says, “This is the deponent’s true and correct declaration,” then a section concerning verification that says, “To the best of the deponent’s knowledge, the contents of the affidavit are true and correct, and nothing material has been withheld.”

Sample affidavit

  1. If ID proof has a single name for the applicant.

I ____ (Applicant Name as per id proof), residing at _______(Address as per address proof) do solemnly affirm and stated as under:

I am _____ and my name _______, appearing on the enclosed ID proof, is a single name. My father’s name is ________________. For applying my DIN application, I am mentioning my father’s name “____________” as my last name, as this is a mandatory requirement for applying DIN. Both names denote one and the same person.

I solemnly declare that the information in this affidavit is accurate to the best of my knowledge and belief, that it contains no false information, and that it contains nothing to be concealed.

  1. Affidavit for name change

I Mr/Ms ____________S/o/D/o______________, aged around ______________years, resident of ______________, do hereby solemnly affirm and declare as under:

That, my name as per the records in my educational institution is ______________ (ABC)

That, by the virtue of this affidavit, I changed my name as _________ on (date of change of name).

Currently, all the records have my changed name _________.

That, I shall at all times, in all dealings and proceedings, sign the name _________   as my name, thereby substituting my former name.

I am getting a public notice published to this effect in the newspaper.

Also, I state that (earlier name) and that (present name) are the names of the same person, and that is myself.

This declaration is hereby executed and submitted to the concerned authorities to accomplish the change of name.

I hereby state that whatever is stated herein is true to the best of my knowledge.

Solemnly affirmed at ________ )

On this ____ day of ______ 20 ) 

(Signature of the Applicant).

Deponent

Note: The above-mentioned affidavit is for reference purposes only, and it is always advised to seek legal assistance while making any such affidavit.

Conclusion

Affidavits are crucial in legal work because they are a legally binding version of the oath that a person has taken. Affidavits are used by people to resolve issues and stay clear of legal snares. However, those who submit or support the fraudulent affidavit are subject to severe sanctions. You must also comprehend the meaning of an affidavit, how to use one, the many kinds of affidavits, and many other things.

Frequently asked questions (FAQs)

What is the purpose of getting an affidavit?

The intention is to stop people from making declarations about things they do not reasonably know about. The deponent must present information that is personally known to them. However, there is an exception when affidavits are sworn on behalf of children under the age of 18 or the insane.

What information shouldn’t be stated in an affidavit?

Affidavits must only contain information that the deponent can personally attest to and should not include any unsupported allegations. It is forbidden to incorporate any hearsay information, fantasy, or belief into the affidavit.

Are affidavits and notaries the same?

When you sign a document in the presence of a notary or an oath commissioner, the affidavit gains legal status and contains facts and information you firmly believe to be accurate. A notary is required when you need an affidavit. A notary is an official who has the power to certify statements made by individuals in the form of affidavits, which are legal documents.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

RELATED ARTICLESMORE FROM AUTHOR

LEAVE A REPLY

Please enter your comment!
Please enter your name here