Affidavits in Indian Law

An affidavit is a written statement of facts that a person swears or solemnly affirms to be true before someone legally authorised to administer the oath or affirmation. The person making it is called the deponent; its use as evidence depends on the applicable procedural law, rather than merely on its being sworn.

Essential elements and authentication

An affidavit combines a written factual statement with an oath or solemn affirmation and authentication by a legally competent person. A solemn affirmation serves the same purpose without requiring a religious oath.

• The document identifies the deponent, records the statements being affirmed and bears the deponent’s signature or mark.
• The authorised person authenticates the administration of the oath or affirmation, ordinarily recording the place and date.
• For affidavits under the Code of Civil Procedure, Section 139 authorises courts, magistrates, notaries and other specified or duly empowered persons to administer the oath.
• Under Section 8 of the Notaries Act, 1952, a notary may administer an oath to, or take an affidavit from, a person; notarisation is therefore one recognised route, not the only route.
• An ordinary self-declaration is not an affidavit merely because it is signed; it lacks the sworn or affirmed character before an authorised person.

What the affidavit may state

Order XIX, Rule 3 of the Code of Civil Procedure, 1908 generally confines affidavits to facts that the deponent can prove from personal knowledge. This guards against presenting unsupported assertions as sworn facts.

• For interlocutory applications, statements based on belief may be admitted, provided the grounds of that belief are stated.
• Verification should distinguish facts within the deponent’s own knowledge from statements based on information or belief, where these are permissible.
• Swearing an affidavit does not establish that every statement in it is true; its contents remain open to scrutiny and challenge.

Procedural and evidentiary status

The Bharatiya Sakshya Adhiniyam, 2023 excludes affidavits presented to a court or officer from its application. Their reception and use are consequently governed by the relevant procedural provisions or other applicable law.

• Under Order XIX, Rules 1 and 2, a civil court may permit specified facts to be proved by affidavit or receive affidavit evidence on an application, subject to the prescribed safeguards.
• The court may require the deponent’s attendance for cross-examination; filing an affidavit does not invariably substitute for oral testimony.