Relevance Of An Affidavit

KEY TAKEAWAYS:-

• Studying the concept of an affidavit.
• Understanding the relevancy of attesting an affidavit.
• Knowing about the punishment provided for filing a false affidavit.

INTRODUCTION:-

The term ‘affidavit’ is a common term used by the legal practitioners and litigants and almost each and every one of us must have come across this term in our daily life but most of the people are still unknown as to what this term actually means. Therefore, it becomes more important to get familiar with this term as well as it uses. Thus, the article covers all the aspects related to the affidavit.

WHAT IS AN AFFIDAVIT:-

According to Merriam Webster, the affidavit implies to “a sworn statement which is made in writing and necessarily under an oath or affirmation before an authorized officer or magistrate.” Thus, in other words we can say that, a written promise is referred to as an affidavit. An affidavit which means “he or she has made a promise” in Latin has been derived from the past tense of the verb ‘affidare’ meaning “to pledge”.

To simplify the term, we can say that “a written declaration signed by a person who implements, swears, verifies and affirms under oath is known as an affidavit. In addition, the individual also declares that the contents of this declaration are true and accurate and nothing in this declaration has been omitted and misrepresented. The document’s veracity is also attested along with the affidavit.

The affidavits become essential because they can be used in place of an oral submission, testimony or evidence which are admitted more preferably in the court of law. The affidavit is a legally binding declaration of a person’s oath which cannot be refuted. It can facilitate a judge’s decision and are useful in maintaining records because of their written description.

In India, Section 139 and Order XIX of the Code of Civil Procedure, 1908 deals with the subject of affidavit.

CONTENTS OF AN AFFIDAVIT:-

1. The statement of facts in an affidavit must be broken into paragraphs, where each paragraph is numbered sequentially. Additionally, it must also be limited to a single area of subject.

2. The individual submitting affidavit must mention their full name along with the father’s name, their profession, place of residence etc., unless they are a party to that suit.

3. The phrase, “I am informed” must be used in the case where the true fact is not known but is stated on the information. The phrase must be accompanied by another phrase, “and verily believe it to be true” in the cases where such fact is applicable. The declarant must also specify the source from which he has obtained the information.

4. In the cases where the declaration is accompanied by some documents obtained from a court of justice or another source, then the declarant must identify the source and express his knowledge regarding the accuracy of the facts contained in such documents.

ESSENTIAL FEATURES OF AN AFFIDAVIT:-

The affidavit contains the following essential features:-

1. It must be in writing.
2. It is declaration by the deponent.
3. The facts mentioned in the affidavit must be true to the best knowledge of the deponent.
4. An affidavit needs to be sworn in under oath before an authorized officer or magistrate to ensure its validity.
5. It is never made on behalf of any other person.

WHEN ARE AFFIDAVITS USED:-

Affidavits are used for taking 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. First born child certificate.
8. Marriage registration.

TYPES OF AFFIDAVIT:-

1. Judicial Affidavit:-

These are the affidavits written on judicial papers and are properly stamped with court fees. They are submitted for a variety of reasons including application support. An oath commissioner’s attestation is required in order to ensure its validity.

2. Non-Judicial Affidavit:-

These are not legally binding and are written on non-judicial stamp paper. Every state has its own different stamp paper value. It has 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.

WHO IS AUTHORISED TO DRAFT AN AFFIDAVIT:-

Affidavits can be drafted by anyone. However, some basic requirements have to be fulfilled:-

1. The deponent must be of legal age.
2. He must understand the nature of the components.
3. The person must not be an insane.
4. He must not fail in understanding the claims made in the affidavit.

In cases, where the affidavit is made by a female declarant appearing before the court, magistrate or other officers in question while wearing a veil is not valid until she has been properly identified. An affidavit of the person identifying her and certified by the court, magistrate or other officers has to be attached along with it.

THE PROCESS OF DRAFTING AN AFFIDAVIT:-

1. Write the name of the court or tribunal where the affidavit has to be field, along with the case no. as assigned by the court, at the top of the document.
2. Mention the party’s name.
3. Write the word ‘affidavit’ in bold and italics as the document’s heading.
4. After saying “do solemnly swear and declare as under”, provide the details of the deponent such as his name, father’s name etc.
5. The deponent must declare that he is plaintiff or the defendant in the first paragraph of the affidavit followed by the introduction and that he is fully aware of the facts and is qualified to testify them.
6. The second paragraph must state that the deponent was authored by an attorney in making the submission.
7. A brief description of the lawsuit.
8. The last sentence must state that, “this is the deponent’s true and correct declaration” followed by a section concerning verification which says that, “to the best of the deponent’s knowledge, the contents of the affidavit are true and correct, and nothing material has been withheld”.

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 this, one of the above people shall enter the date and sign the certificate and mark such an exhibit as affidavit for its identification. The verifying authority’s name must be fully signed and special attention must be given to ensure that his correct identification as Civil Court or Magistrate is appended.

1. Non-Judicial Affidavit:-

They are attested by the following persons:-

1. Commissioner for Oaths by the State or the High Court according to Section 3(2)(b) of the Oaths Act, 1969.
2. Notary appointed under the Notaries Act, 1952 for a respective area or the whole of India Notary.
3. Magistrate for a respective area.

2. Attestation by Process Servers and Other Officials:-

The state government has authorized the court of the subordinate judge of the First Class in charge of the Nazrat to appoint an officer to process servers, bailiifs etc. making affidavits of service of summons, notices and other such processes under Order V, Rule 19 or Order XVI, Rule 10 of the CPC in order to facilitate the verification of affidavits of serving officers.

EVIDENTIARY VALUE OF AFFIDAVITS:-

An affidavit as an evidence is not admissible by the court unless the law specifically permits it. The Indian Evidence Act does not apply to affidavits presented to any court or officer. Thus, an affidavit is not evidence under the Indian Evidence Act, 1872. The court in the case of Sheoraj vs. Batra 1955 held that, “if a fact is allowed to be proved by an affidavit by the CPC, CrPC or any other law, it can be proved by affidavit notwithstanding the provision of the Indian Evidence Act”. The case also noted the fact that an affidavit is worthless if the deponent refuses to appear for cross-examination in response to a demand from the opposing party.

The High Court in the case of Premlal vs. Kunti Bai held that, “a close reading of Section 3 of the Indian Evidence Act, 1872 demonstrates that an affidavit is not covered under the definition of an ‘evidence’ and is used only when the court grants permission as per the provisions of Order 18 Rule 4(2) of CPC”.

Therefore, no court can consider the submission of an affidavit or one’s own declaration in one’s own favour.  Additionally, the Order XIX and section 139 of the Code of Civil Procedure as well as Order XI of the Supreme Court Rules provide the legal requirements for affidavits.

PUNISHMENT FOR FILING A FALSE AFFIDAVIT:-

Anyone who knowingly provide false testimony at any stage of a legal proceeding or creates a false testimony with the intent of using it at later stages of proceedings shall be punished by imprisonment of either kind for a term not exceeding seven years along with the fine.

Any person who knowingly provides or fabricates false evidence in any other circumstance is punished with an imprisonment for maximum three years along with a fine. Such an act is recognized as an offence under sections 191, 193, 195 and 199 of the Indian Penal Code, 1860.

The criminal proceeding against the offender is started by filing an application under section 340 r/w section 195 of the Code of Criminal Procedure before a criminal or civil court or a tribunal designated as court by the statute 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 documents are presented in any quasi-judicial or administrative action.

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. We must also comprehend the meaning of an affidavit, how to use one, the many kinds of affidavits and many other things.