What is an affidavit? Is affidavit an evidence?

affidavit

At one point of time or another, almost everyone is required to sign certain type of affidavit in the course of managing common, personal and business affairs. That makes it very important to understand that what affidavits are and how they are used. In simple sense, an affidavit is a sworn statement of fact that can be used in a variety of legal proceedings.

Affidavits are generally used for various reasons, and it is not as same as an agreement or a contract. Usually, people don’t have a good grip on the definition of an affidavit. There are several occasions when a person files, by a chance, an affidavit without his knowledge.

What is an affidavit?

An affidavit is a self made willing declaration in writing, signed by the deponent (person who makes the affidavit) and accompanied by an oath. “Affidavit” has originated from a Latin word which means to “pledge ones faith.” It is to be signed and witnessed by a notary authority. It is to be signed without any cross-examination by the affiant.

Another way of thinking of an affidavit is as a kind of written court testimony. In the court of law, you are asked to take an oath on a Holy Book and swear that you’re telling the truth, likewise on an affidavit, you do this same thing in writing. You’re under oath, but your testimony is on paper. They are necessary in a way that the oral submission/testimony/evidence is only admissible before a judge but an affidavit can also be used as an alternative to this.

Misleading information in an affidavit can result to criminal penalties against the affiant, but if the affiant fails to recall something or misses something then he cannot be charged for such omission. If the affiant includes something in the affidavit which is not an fully established fact or is not backed up by any evidence, then he will have to state that it is his ‘opinion’.

The law on affidavits in India is usually governed by Section 139, Order XIX of the Code of Civil Procedure and Order XI of the Supreme Court Rules also. Judiciary at several instances have upheld the importance of the authencity of an affidavit by the means of the above mentioned rules and sections.

An affidavit contains following contents:

  • An affidavit containing the statement of facts shall be divided into paragraphs and each of the paragraphs need to be numbered. It will be more suitable and appropriate if each paragraph shall be limited to a well defined portion of the subject.
  • Every person, except a plaintiff or defendant in a case in which the application is made, making any affidavit, must be described in such a manner as will benefit to identify him clearly, by his full name, father’s name, his profession, and place of his residence.
  • When the affiant in an affidavit mentions to any facts within his own knowledge, he shall do so positively and directly, by using the words ‘I affirm’.
  • When any fact is not under the declarant’s own knowledge, but is extracted from the information procured from others, the affiant shall use the words ‘I am informed’,—and, in such cases, should mention ‘and verily believe it to be true’ – or he may state the source from which he extracted such information. When the statement laid on facts revealed in documents, or copies of documents extracted from any Court of Justice or from any other source, the affiant must mention the source from which they were extracted, and mention his information or his belief as to the truth of the facts revealed in such documents.

Affidavits can be useful in various situations and they are of several types, some of the most common types of affidavits are as follows :

Court affidavits –

Though a court trial generally involves witnesses appearing before court to give oral testimony, but there may be situations in a legal proceeding where affidavits are to be used, such as in the support of written motions or at the time when a witness is not available to appear before the court.

Self-proving will affidavit-

When the signature of a person making a will is notarized. Normally, a will requires at least of two witnesses to the maker’s signature. Earlier, when the maker died, it was necessary to have the witnesses testified in court in order to make the will valid. With the help of self-proving will affidavit, the will is automatically deemed to be valid without any testimony of the witnesses.

Affidavit of power of attorney

The power of attorney (POA) is a legal document signed by a person, known as the principal, that provides another person, the agent, an authority to act on behalf of the principal. But, this authority ends as soon as the principal dies or revokes the power of attorney.

Financial affidavit 

These type of affidavit verifies certain financial information relating to the affiant. Financial affidavits are ordinary in divorce cases, where each party have to verify their assets, debts, expenses and income. Financial affidavits are also generally used in connection with estate planning and certain financial transactions like loan applications.

Affidavit of lost document.

If an important legal document is lost or destroyed, it can be re-established with an affidavit. For example, if you owed money under a promissory note and that has been lost or destroyed, then it may be possible to re-establish that note by executing an affidavit of the lost promissory note and of the indemnity agreement. This permits another party to count on your assurance that the note existed and you will reimburse the other party in the occurence of any economic loss due to your assurance.

Affidavit of identity theft 

If any person have been the victim of identity theft, then they  may need to provide an affidavit certifying the theft to their creditors, credit bureau and banks.

Affidavits as an evidence:

Affidavit is an admissible evidence, however some courts may need you to testify the affidavit or they may consider it as hearsay evidence. Since hearsay is not admissible as an evidence, the affidavit may not be used for evidence if anyone objects to it unless it is testified. Therefore, never presume that just because you signed on an affidavit and it will release you out of testifying in court as a witness. At times courts may have some local rules that will state whether an affidavit will be considered as hearsay or not. Your lawyer will let you know that if you need an affidavit or have to testify or if you need an affidavit and will have to testify it.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje