Null and Void ab Initio under Indian Law: Conceptual Foundations, Doctrinal Developments, and Jurisprudential Trajectories

Null and Void ab Initio under Indian Law: Conceptual Foundations, Doctrinal Developments, and Jurisprudential Trajectories

Introduction

The Latin maxim nullum actum est ab initio, si ab initio non valet – an act is void from the beginning if it is void at all – permeates multiple branches of Indian law. Whether in constitutional review, contractual disputes, matrimonial litigation, property conveyancing, or administrative action, the characterisation of a norm or act as “null and void ab initio” determines its legal fate, the remedial framework, and the temporal reach of judicial declarations. This article critically interrogates the concept from statutory, doctrinal, and jurisprudential perspectives, with particular emphasis on recent and classical Indian authorities.

Statutory Foundations and Conceptual Taxonomy

(a) Express legislative voidness

Numerous enactments employ the term “void” to describe legal acts bereft of effect ab initio. Illustratively, the Indian Contract Act, 1872 defines a “void agreement” as one “not enforceable by law” (s 2(g)), while a contract that “ceases to be enforceable” becomes void (s 2(j)). Section 11 of the Hindu Marriage Act, 1955 (HMA) declares bigamous marriages void, thereby denuding them of any matrimonial rights save those expressly saved for children (s 16, HMA). Constitutional voidness is anchored in Article 13(2), which renders post-constitutional laws contravening Part III “void to the extent of the contravention”.

(b) Distinction between “void”, “voidable”, and “inoperative”

Indian courts consistently differentiate:

  • Void ab initio: producing no legal effect from inception; may be ignored even collaterally.1
  • Voidable: operative until annulled by competent adjudication (e.g., s 12, HMA).
  • Inoperative: once valid instruments that subsequently lose enforceability (e.g., arbitration agreements frustrated by supervening illegality).2

Constitutional Adjudication: Voidness and Temporal Effect

Article 13(2) pronounces an immediately operative voidness upon enactments infringing fundamental rights. In Kihoto Hollohan v Zachillhu3 the Supreme Court identified the absence of State-legislature ratification under Art. 368(2) as fatal to para 7 of the Tenth Schedule, striking it down ab initio. Conversely, Ashok Kumar Gupta v State of U.P. clarifies that the labels “void” or “nullity” depend on the declaration’s scope and any prospective limitation imposed by the court.4

The debate on retroactivity surfaces in tax jurisprudence. In Dhulabhai v State of M.P., statutory exclusion of civil jurisdiction could not bar challenges to ultra vires exactions; the offending levy being void, the suit lay in a civil court despite procedural bars.5

Private Law Dimensions

(a) Contract and Arbitration

An arbitration clause may itself be void for non-compliance with statutory form, exemplified by Union of India v A.L. Rallia Ram, where failure to satisfy s 175(3) of the Government of India Act, 1935 would have nullified the contract; the Court, however, found due execution, preserving its validity.6

The Madras High Court, analysing s 9(4) of the English Arbitration Act, endorsed an international understanding that “null and void” means “devoid of legal effect”, limiting the category to duress, fraud, or contravention of fundamental policy.7

(b) Family Law

Bigamous marriages post-1955 are void ab initio. Yamunabai Adhav v Anantrao Adhav held that a woman in such a void marriage is not a “wife” within s 125 CrPC, precluding maintenance.8 Lily Thomas v Union of India reaffirmed that conversion to Islam, absent dissolution of a subsisting Hindu marriage, does not circumvent voidness and invites criminal liability for bigamy (s 494 IPC).9

(c) Property and Conveyancing

The Supreme Court in Suraj Lamp & Industries v State of Haryana declared that SA/GPA/Will transactions do not transfer title, branding such instruments legally non-existent for conveyancing purposes.10

(d) Procedural Law and Decrees

A decree passed by a court lacking inherent jurisdiction is a nullity and may be challenged even in collateral proceedings. Illustratively, the Madras High Court held a consent decree passed post-Reference to DRT to be “without jurisdiction” and therefore void.11 By contrast, Pushpa Devi Bhagat v Rajinder Singh emphasised that a consent decree recorded in conformity with Order 23 rule 3 CPC stands immune from appeal under s 96(3) CPC and is neither void nor voidable.12

Doctrinal Contours

(a) Requirement (or Not) of a Declaratory Decree

Where an act is void ab initio, parties may treat it as non-existent. The Privy Council line as adopted in Sarat Chandra Gupta v Kanai Lal indicates that limitation for challenging a void instrument runs not under Art. 91 (cancellation) but under the residuary article, because no affirmative relief of rescission is needed.13

(b) Collateral Challenge and Jurisdictional Nullity

In administrative law, an order passed without jurisdiction is “a mere nullity” and can be ignored eo instanti (Madhavan Pillai v State of Kerala).14 The Chhattisgarh High Court, relying on Nawabkhan Abbaskhan and Kendriya Vidyalaya Sangathan, reiterated that once a competent court sets aside such an act, it is deemed never to have existed.15

(c) Severability versus Total Invalidity

Kihoto Hollohan declined to sever para 7, holding it integral to the Tenth Schedule’s architecture. The majority therefore voided the entire Schedule, underscoring that partial excision is impermissible where the remainder cannot function autonomously.3

Policy Considerations and Comparative Perspectives

Judicial readiness to brand acts void ab initio promotes constitutional supremacy and procedural fidelity but may also unsettle transactions and erode reliance interests. The device of prospective overruling (e.g., Golak Nath, though not strictly on voidness) and the cautious deployment of severability illustrate the Court’s balancing act. Moreover, modern statutory drafts increasingly employ graduated invalidity – for instance, Section 21 of the Arbitration and Conciliation Act, 1996 distinguishes “invalid”, “inoperative”, and “incapable of being performed”, aligning with international models.

Conclusion

The Indian legal system accords the label “null and void ab initio” a potent, sometimes draconian, consequence – obliteration of legal existence. While essential to uphold constitutional and statutory mandates, courts have tempered its reach through doctrines of prospective overruling, severability, and equitable estoppel. Practitioners must therefore assess not merely the semantic invocation of voidness but the underlying statutory context, jurisdictional competence, and judicial pronouncements governing temporal and collateral effects. As jurisprudence evolves, especially in arenas such as electronic transactions and administrative governance, the principled deployment of the “void ab initio” doctrine will remain central to the integrity of the Indian legal order.

Footnotes

  1. Madhavan Pillai Somanatha Pillai v State of Kerala, AIR 1966 Ker 47.
  2. Ramasamy Athappan v ICC Secretariat, 2008 SCC OnLine Mad 137.
  3. Kihoto Hollohan v Zachillhu, 1992 Supp (2) SCC 651.
  4. Ashok Kumar Gupta v State of U.P., (1997) 5 SCC 201.
  5. Dhulabhai v State of M.P., AIR 1969 SC 78.
  6. Union of India v A.L. Rallia Ram, AIR 1963 SC 1685.
  7. Ramasamy Athappan, supra note 2.
  8. Yamunabai Adhav v Anantrao Adhav, (1988) 1 SCC 530.
  9. Lily Thomas v Union of India, (2000) 6 SCC 224.
  10. Suraj Lamp & Industries v State of Haryana, (2012) 1 SCC 656.
  11. A. Manohar Prasad v Kotak Mahindra Bank, 2021 SCC OnLine Mad 6208.
  12. Pushpa Devi Bhagat v Rajinder Singh, (2006) 5 SCC 566.
  13. Sarat Chandra Gupta v Kanai Lal Chakrabarty, 1921 SCC OnLine Cal 66.
  14. Madhavan Pillai, supra note 1.
  15. Ku. Girija Patel v State of Chhattisgarh, 2017 SCC OnLine Chh 1464.