An affidavit may be defined as a statement or declaration in writing on oath or affirmation before a person having authority to administer oath or affirmation. The term affidavit has been defined by Section 3 and clause 3 of the General Clause Act. The term affidavit defined by this section includes affirmation and declaration in cases of persons by law allowed to affirm or declare instead of swearing.
Who is Deponent?
The person who makes and signs is known as ‘Deponent’. The deponent makes sure that the contents are correct and true as per his knowledge and he thereby concealed no material therefrom. After signing the document, the affidavit must be duly attested by the Oath Commissioner or Notary appointed by the court of law.
The person who gives attestation to the affidavit shall make sure that the sign of the deponent is not forged. The affidavit shall be drafted as per the provisions of the code. It must be paragraphed and numbered properly.
Law relating to affidavit
The Indian Oaths Act,1873 govern the law relating to affidavits in India. Two or more persons join in an affidavit subject to the conditions that each should dispose separately to those facts which are within his own knowledge, and such facts should be stated in separate paragraphs. Order 19 also deals in affidavit.
Essentials of Affidavit
There are some basic essentials which are required to be fulfilled while submitting the affidavit in the court:
(1) It must be a declaration by a person.
(2) It shall not have any inferences, it shall contain facts only.
(3) It must be in the first person.
(4) It must be in writing.
(5) It must be statements which are taken under oath or affirmed before any other authorized officer or a Magistrate.
Contents of affidavit
As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware off as true to his personal knowledge. However, interlocutory applications can be filed wherein he can admit his belief.
Various part of affidavit
Affidavit is a solemn declaration on oath all the relevant material facts must be included in it. But no fact which is unverifiable by the deponent should be included in it.
The various part of affidavit are as given below:- a) Introductory para b) Declaration of facts c) Closing para.
a) Introductory para:- In the opening para, name , age, parentage and full address of the deponent must be given. Besides it must disclose that deponent is making a solemn declaration. For example, “I Mr/Mrs X, aged about 35 years, son/daughter of …., resident at…….., do hereby solemnly affirm and state as under:”
b) Declaration of Facts:- The main body of affidavit is the declaration and narration of facts which the deponent wishes to swear on oath. Each facts must, clearly yet briefly, be set forth in separate paras. The parts must be numbered for the sake of convenience and clarity of expression.
c) Closing Para:- The closing para of affidavit contains verification. The deponent has to verify an affidavit.
Evidence on affidavit
As per section 3 of the Evidence Act, affidavits are not considered as evidence. When there is a need to prove the facts, oral evidence is normally taken into consideration by the court. However, Rule 1 Order 19 is invoked by the Court when it finds that it is necessary to make an order for any particular fact which may be proved by affidavit. If a person provides evidence under the affidavit then the opposing counsel has the right to cross-examine or reply-in-affidavit.
Further, the person who is making an affidavit shall put on those facts only to which he has true personal knowledge. If he gives a statement, not to his personal knowledge then in such case he shall mention the true source. The counsel shall advise the deponent to make sure that he puts facts which he knows rather than what he believes.
The court can reject the affidavit if it is not properly verified and not in conformity with the rules of the code. At the same time court can also give an opportunity to the party to file the affidavit properly.
In the interlocutory applications like interim injunctions, the appointment of receiver, attachment of property wherein the rights of the parties are not determined conclusively, can be decided on the basis of the affidavit.
Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence. Giving a lenient view will undermine the value of the document and it will harm the proceedings and will provide no justice to the parties. Criminal contempt of court proceedings can be initiated by the court against the person who files false affidavits in the court of law. Strict actions are taken against public officials who files false affidavits.
As per section 193 of the IPC:
– a person who intentionally gives false evidence or fabricates false evidence during a judicial proceeding, he shall be punished with seven years of imprisonment and fine;
– and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Points to be remembered while making an affidavit
There are the following points to be remembered while making an affidavit:-
1) First ascertain whether there is any need to submit an affidavit.
2) The proper amount of court fees should be affixed.
3) Ascertain the particulars of the person making declaration.
4) The subject matter of swearing each point must be clearly brought out in separate para.
5) Verification of the contents of affidavit must be properly verified in the manner prescribed.
6) Verification of the affidavit either by an oath commissioner or by a notary.
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