Ab initio

Ab initio means from the beginning. Its most common use is in the phrase void ab initio, which describes an act or transaction that was a nullity from the start and never produced legal effect. It is contrasted with a voidable transaction, which is valid until it is set aside by the party entitled to avoid it.

The distinction runs through Indian law. Under Section 2(g) of the Indian Contract Act, 1872 an agreement not enforceable by law is void, while under Section 2(i) an agreement enforceable at the option of one party is voidable. Section 11 of the Hindu Marriage Act, 1955 makes a marriage in breach of certain conditions of Section 5 null and void, whereas Section 12 lists grounds on which a marriage is only voidable. Under the Prohibition of Child Marriage Act, 2006 a child marriage is ordinarily voidable at the option of the child party under Section 3, but Section 14 declares a child marriage solemnised in contravention of an injunction under Section 13 void ab initio.

The consequences matter. In Prem Singh v. Birbal (2006) the Supreme Court held that Article 59 of the Limitation Act governs suits to cancel instruments that are voidable and prima facie valid, not instruments void ab initio, which need not be set aside. In In re Interplay between Arbitration Agreements and the Stamp Act (2023) a seven-judge bench held that an unstamped agreement is inadmissible but not void ab initio. In Keshavan Madhava Menon v. State of Bombay (1951) the Court held that Article 13(1) does not make pre-Constitution laws inconsistent with fundamental rights void ab initio; they are void only as regards the future.

In tort, a person who enters under authority given by law and then abuses it becomes a trespasser ab initio. In the Six Carpenters' Case (1610) the carpenters who refused to pay for wine were not trespassers ab initio, because a mere non-feasance, as distinct from a positive wrongful act, does not have that effect. Examiners test the void and voidable distinction and the Six Carpenters' rule.