Affidavit A to Z
Affidavit is a very common procedure to our legal system, in some point or other we need to execute affidavit for various legal formalities but often we do not bother to think about the legal reference or consequence of an Affidavit. This article will provide you a good idea about affidavit related laws and consequence about it.
The word “Affidavit” came from Medieval Latin word “affīdāvit” means “(he) has declared on oath” that means a person as a witness and under oath has declared what he has seen or known about any fact or issue before a judge or court. In present context we can explain an affidavit as follows; an “Affidavit” is a written statement of a witness’s testimony (known as deponent) by which he attests the facts as true to his knowledge under oath by maintaining prescribed legal proceedings before a Magistrate or Notary (Notary Public) or any other person as empowered by law (known as administrator) .
Prescribed legal procedure:
Where an affidavit is necessary?
Affidavit can be classified into two main groups:
Contentious/ Litigation Matters: These types of Affidavit make before Magistrate or Commissioner of Affidavit or Sherestadar (Clark). In court practices, it is needed to file an interlocutory application with affidavit.
Non-contentious/Non-litigation Matters: These types of Affidavit make before Notary Public or Sub-Registrar or Magistrate or other authorized persons. In this type of affidavit, often people make declaration relating to certificate, marriage, divorce, statements regarding the birth date or name correction etc.
There is a long list where affidavit is required by law on the other hand court can ask for affidavit time to time, here is a list of most common places where we need affidavit.
- Affidavit for Court Purposes
- Affidavit for correction of Birthdate
- Affidavit for correction of Name
- Affidavit of Muslim Marriage (it is an evidence, not due process of Muslim marriage which must be registered by kazi under the Muslim Marriage Registration Act, 1974).
- Affidavit for Divorce.
- Affidavit to Compromise a Criminal Case
- Affidavit as Joint Owners
- Affidavit in Compliance on Company Matters before HCD
- Affidavit in Compliance on Company Matters before High Court Division
- Affidavit in opposition on behalf of the respondents before HCD.
- Affidavit in opposition on civil revision before HCD.
- Affidavit in opposition on writ before HCD.
- Affidavit in opposition on writ before HCD (Banking matters).
- Affidavit in compliance on Company Matters.
- Affidavit in reply on a writ before HCD
- Supplementary Affidavit Before HCD of the Supreme Court
- Supplementary Affidavit Before HCD of the Supreme Court
- Affidavit for a contract of Pupilage to become a lawyer
- Forms of Contract of Pupilage to become a lawyer
- Affidavit to buy or sell a vehicle or to register
Who can administer an affidavit?
Under section 139 of Code of Civil Procedure, 1908. it is said that who can administer an affidavit or in another word before whom deponent should apply for affidavit and that (empowered) person will check the document and approve it as an affidavit. Generally, the affidavit is administered by a Notary or by a Magistrate depending on the particular requirement of the subject matter but the government may appoint any other court or person to administer the oath to the deponent. It is also important to note that in various cases some government form can be treated as an affidavit where the respective officer/person administer the oath.
The section is quite self-explanatory,
Oath on affidavit by whom to be administered
|139. In the case of any affidavit under this Code-
(a) any Court or Magistrate, or
(b) any officer or other person whom 1[ the Supreme Court] may appoint in this behalf, or
(c) any officer appointed by any other Court which the Government has generally or specially empowered in this behalf,
may administer the oath to the deponent.
A similar provision has also been presented under section 539 of Code of Criminal Procedure, 1898. It articulated the following
|Courts and persons before whom affidavits may be sworn||539. Affidavits and affirmations to be used before High Court Division or any officer of such Court may be sworn and affirmed before such Court or the Clerk of the State or any Commissioner or other person appointed by such Court for that purpose, or any Judge, or any Commissioner for taking affidavits in any Court of Record in Bangladesh|
Who can be a deponent?
Any person with sound mind and who is major can be a deponent. Guardians can be deponent on behalf of their minor child.
What procedure to follow?
Before appearance to the magistrate following common matters should be taken care of;
- Writhe the subject matters on a non-judicial stamp paper
- Value of the stamp paper should be calculated depending on the subject matter, generally between 150 taka to 500 taka.
- Full Name, Parents Name, Address, Voter ID No, Date of Birth or Age, religion etc must be included.
- Date of Execution
- Passport size photo (formal & attested)
- Put the related subject matters for example;
- For Land issue, schedule (details of nearby attached land)
- For correction of name, both misspelled name and the correct one
- For Marriage issue (Court Marriage) details and a photo of both of The bride and groom and the details of the marriage contract (for Muslim marriage) such as dower, how much is given at instance etc.
- Note, Marriage must be completed by under personal law or under The Special Marriage act before such Affidavit.
- For divorce issue, the cause of the divorce
- An Advocate must acknowledge that the whole affidavit is executed before him by his sign in the affidavit
There are various types of affidavit and procedure of each could be bit different than others, however, Order XIX of Code of Civil Procedure, 1908 has provided the common procedure of an affidavit, you may expect the following during your affidavit so it is good to be prepared!
- Except for generally required affidavit, any court when thinks it is reasonable can order to prove a particular fact by affidavit by any witness.
- A court may at the presence of either party, order the attendance for cross-examination of the deponent. That means the deponent can be questioned to prove is affidavit by calling other witnesses.
- Affidavit only confirms where the deponent himself by his own knowledge affirms the facts he stated.
The court may also require the deponent to read the attested fact before him; he may check the details and ask questions before confirming it. At the final stage, the court or Notary shall put a serial no, seal, sign and approve it as a valid Affidavit
Effect of an affidavit
This long procedure and formalities must have some feedback right? Yes, it has. An affidavit is used as evidence and from there you cannot retrieve yourself as you want this doctrine is known as Doctrine of Estoppel which is presented under section 115 of The Evidence Act, 1872
Similarly, if your affidavit is proven wrong with malafide (bad) intention you could be charged under section 193 of The Penal Code, 1860, where punishment for false evidence is stated. You may be imprisoned up to 3 years with fine for non-judicial use of an affidavit. In the matter of judicial matter it could be up to 7 years of imprisonment.* However, In the matter of Bangladesh Bar council you could be barred for 5 years if you present false information along with other legal consequences.*
Depending on the type including drafting, advocate fee, Clark fee, stamp, compose and printing etc. it could be 500 taka or above at Dhaka (Bangladesh) court.
Example / Sample / Format of two most used Affidavit
Free Marriage Affidavit Format
Free Name Correction Affidavit Format
* More specific reference is needed.