Must Knows

What is an affidavit, its format and usage in India?

[ecis2016.org] Read on to know how to prepare an affidavit, which is a legal document that binds a witness under oath, holding the statements made by an individual as true and abiding by the constitution under Rule 3 of order 19 of the Code of Civil Procedure.

An affidavit is a legal paper that binds a witness under oath, holding the statements made by an individual as true and abiding the constitution under Rule 3 of order 19 of the Code of Civil Procedure. The content of an affidavit reflects the personal knowledge of an individual, thereby, cannot be held responsible for failing to include information that they were not aware of at the time of filing. 

It is imperative that the affidavit clearly and accurately represents facts and must be signed under the presence of a solicitor, notary public, or judicial officer who has administered the oath. Under section 3 of The Evidence Act, if the court has sufficient reasons, such as the right of the opposition to have the deponent produced for cross-examination in a said case, the affidavit can be an evidence. At no given point the individual can be forced to share information or testify in a court of law. 

affidavit1

Image Source: www.mca.gov.in

An affidavit format will vary and contain specific information to fulfil its purpose and meet the legal requirement. A deponent uses affidavits during property disputes, divorce proceedings, debt cases, family law issues, etc. Therefore, it is vital to keep the format of the affidavit altered according to the represented cases. Nonetheless, the basic affidavit format remains the same. 

Format of affidavit

The title of this document should mention ‘AFFIDAVIT’ in bold and underlined font.

Step 1: presenting the case in court (civil, criminal or family)

This legal document draft will begin with the name of the court or tribunal in which the affidavit is to be submitted, along with the allotted suit (case) number. 

  • Courthouse name and level (Mayo court, civil court)
  • State (Bangalore)

Step 2: Disclosure of personal information

It will entail the details of the deponent(the person testifying the truth in the main petition): name, father’s name, age and residential address, followed by ‘Do solemnly affirm and declare as under’.

Step 3: The perspective of the affidavit (first person)

In the introductory paragraph, the deponent will mention the stance in the affidavit of being the plaintiff or the defendant. Moreover, an individual needs to declare awareness of the facts of the case and can testify for the same. A person must state that they are sharing the information accurately and best to their knowledge.

Step 4: Prima facie 

Individuals need to disclose their legal counsel’s name in the submission. Moreover, the deponent needs to testify that they fully understand the content written in the affidavit. The lawyer acknowledges that the affidavit has been read in the deponent’s spoken language, with a detailed explanation and the consequences.  

Step 5: Reasoning for affidavit 

A deponent will briefly mention the circumstances of the suit. Here, the deponent will share the appeal’s details and the reason behind the affidavit. However, if the main petition already contains the details, the petitioner need not repeat the detail in the present affidavit. One can mention ‘the contents of the petition are not being repeated here for brevity and therefore one shall consider the same as a part of this affidavit’.

Step 6: Acknowledgement

Finally, the affidavit will state that its deponent presents a true and correct statement, followed by a paragraph about verification. Here, the deponent will state that the content of the affidavit is correct and presented to the best of the deponent’s knowledge and that nothing has been concealed.

Affidavit under code of Civil Procedure 1908

Rule 1: Power to prove any point to be proved by affidavit

At the time of proceedings, a court under sufficient reasons can order that any particular fact or facts may be proved by affidavit or that the affidavit provided by the witness can be read at the hearing, on a condition that the court deemed reasonable. 

Rule 2: Power to order the attendance of a deponent for cross-examination

The court has the authority to call the deponent for the cross-examination if the request has been made by either of the parties. Such attendance shall be in court to verify the applicable evidence submitted by the deponent. 

Rule 3: Matters to which affidavits shall be confined

The affidavits shall be confined to mere facts, and deponents can prove which statements of his belief may be admitted, given that the grounds are stated.

Content of affidavit

An affidavit should only include facts that can be proven in court with the deponent’s firsthand knowledge. The deponent should refrain from any assumptions and speculative beliefs. However, editorial applications filed in the civil court are the exception to this rule. Any source presented is liable for cross-examination by the opposite party. An affidavit contains simple facts mentioned after a verification clause that the designated officer with authority must attest to.

Common usage of an affidavit in India

  • Affidavit to change the name
  • Joint affidavit for marriage
  • Affidavit for newborn baby
  • Affidavit to change signature
  • Address proof affidavit
  • Income proof affidavit
  • Affidavit for loan agreement
  • Affidavit for rent agreement 
  • Affidavit to issue a legal notice
  • Affidavit for a death certificate 
  • Affidavit for estate planning

Source: https://ecis2016.org/.
Copyright belongs to: ecis2016.org

Debora Berti

Università degli Studi di Firenze, IT

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